-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, F48Il/yrD1HkWk05FuhMzLG15bPgJGd9t2sjm+kNnwQ83w+M8e9tAirW16ooOdn3 QNZVdDbmM8j5Q6eYMtcN+g== 0000903423-04-000302.txt : 20040302 0000903423-04-000302.hdr.sgml : 20040302 20040302172710 ACCESSION NUMBER: 0000903423-04-000302 CONFORMED SUBMISSION TYPE: T-3/A PUBLIC DOCUMENT COUNT: 184 FILED AS OF DATE: 20040302 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COVANTA ENERGY CORP CENTRAL INDEX KEY: 0000073902 STANDARD INDUSTRIAL CLASSIFICATION: COGENERATION SERVICES & SMALL POWER PRODUCERS [4991] IRS NUMBER: 135549268 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28706 FILM NUMBER: 04643694 BUSINESS ADDRESS: STREET 1: 40 LANE ROAD CITY: FAIRFIELD STATE: NJ ZIP: 07004 BUSINESS PHONE: 2128686100 MAIL ADDRESS: STREET 1: 40 LANE ROAD CITY: FAIRFIELD STATE: NJ ZIP: 07004 FORMER COMPANY: FORMER CONFORMED NAME: OGDEN CORP DATE OF NAME CHANGE: 19920703 T-3/A 1 covanta_t3a4.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-3/A (Amendment No. 4) FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE TRUST INDENTURE ACT OF 1939 Covanta Energy Corporation ("Covanta") and AMOR 14 Corporation Covanta Acquisition, Inc. Covanta Bessemer, Inc. Covanta Cunningham Environmental Support, Inc. Covanta Energy Americas, Inc. Covanta Energy Construction, Inc. Covanta Energy Group, Inc. Covanta Energy International, Inc. Covanta Energy Resource Corp. Covanta Energy Services, Inc Covanta Energy West, Inc. Covanta Engineering Services, Inc. Covanta Geothermal Operations Holdings, Inc. Covanta Geothermal Operations, Inc. Covanta Haverhill Properties, Inc. Covanta Heber Field Energy, Inc. Covanta Hennepin Energy Resource Co., Limited Partnership Covanta Hillsborough, Inc. Covanta Huntington Resource Recovery One Corp. Covanta Huntington Resource Recovery Seven Corp. Covanta Huntsville, Inc. Covanta Hydro Energy, Inc. Covanta Hydro Operations West, Inc. Covanta Hydro Operations, Inc. Covanta Imperial Power Services, Inc. Covanta Kent, Inc. Covanta Lancaster, Inc. Covanta Lee, Inc. Covanta Long Island, Inc. Covanta Marion Land Corp. Covanta Mid-Conn., Inc. Covanta Montgomery, Inc. Covanta New Martinsville Hydroelectric Corporation Covanta New Martinsville Hydro-Operations Corporation Covanta Oahu Waste Energy Recovery, Inc Covanta Onondaga Five Corporation Covanta Onondaga Four Corporation Covanta Onondaga Operations, Inc. Covanta Onondaga Three Corporation Covanta Onondaga Two Corporation Covanta Onondaga, Inc. Covanta Operations of Union LLC Covanta OPW Associates, Inc. Covanta OPWH, Inc. Covanta Pasco, Inc. Covanta Plant Services of New Jersey, Inc. Covanta Power Equity Corporation Covanta Power Pacific, Inc. Covanta Power Plant Operations Covanta Projects of Hawaii, Inc. Covanta Projects, Inc. Covanta RRS Holdings Inc. Covanta Secure Services, Inc. Covanta SIGC Energy, Inc. Covanta SIGC Energy II, Inc. Covanta SIGC Geothermal Operations, Inc. Covanta Systems, Inc. Covanta Wallingford Associates, Inc. Covanta Waste to Energy, Inc. Covanta Water Holdings, Inc. Covanta Water Systems Inc. Covanta Water Treatment Services Inc. DSS Environmental, Inc. ERC Energy II, Inc. ERC Energy, Inc. Heber Field Energy II, Inc. Heber Loan Partners LMI, Inc. Mammoth Geothermal Company Mammoth Power Company Mt. Lassen Power Pacific Geothermal Company Pacific Oroville Power, Inc. Pacific Wood Fuels Company Pacific Wood Services Company Three Mountain Operations, Inc. Three Mountain Power, LLC Burney Mountain Power Covanta Alexandria/Arlington, Inc. Covanta Bristol, Inc. Covanta Fairfax, Inc. Covanta Haverhill, Inc. Covanta Honolulu Resource Recovery Venture Covanta Indianapolis, Inc. Covanta Marion, Inc. Covanta Omega Lease, Inc. Covanta Stanislaus, Inc. Haverhill Power, Inc. Michigan Waste Energy, Inc. (the "Guarantors" and, together with Covanta, the "Applicants") ----------------------------------------------------------------------------- (Name of applicants) 40 Lane Road, Fairfield, NJ 07004 ------------------------------------------------------------------------------ (Address of principal executive offices) Securities to be Issued Under the Indentures to be Qualified: Title of Class Amount ------------------------------------------------------------------------------ 8.25% Senior Secured Notes due 2011 Up to a maximum aggregate principal amount of $230,000,000 7.5% Subordinated Unsecured Notes due 2012 Up to a maximum aggregate principal amount of up to $50,000,000 Approximate date of proposed public offering: As promptly as possible after the Effective Date of this Application for Qualification. Jeffrey R. Horowitz Covanta Energy Corporation 40 Lane Road Fairfield, New Jersey 07007-2615 (Name and Address of Agent for Service) With a copy to: William F. Gorin, Esq. Cleary Gottlieb Steen & Hamilton One Liberty Plaza New York, NY 10006 and David E. Webb, Esq. Cleary Gottlieb Steen & Hamilton One Liberty Plaza New York, NY 10006 The registrant hereby amends this application for qualification on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this application for qualification shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. GENERAL 1. General Information. (a) Form of organization. The following Applicants are corporations: AMOR 14 Corporation; Covanta Energy Corporation; Covanta Acquisition, Inc.; Covanta Bessemer, Inc.; Covanta Cunningham Environmental Support, Inc.; Covanta Energy Americas, Inc.; Covanta Energy International, Inc.; Covanta Energy Resource Corp.; Covanta Energy Services, Inc.; Covanta Energy West, Inc.; Covanta Engineering Services, Inc.; Covanta Geothermal Operations Holdings, Inc.; Covanta Geothermal Operations, Inc.; Covanta Haverhill Properties, Inc.; Covanta Heber Field Energy, Inc.; Covanta Hillsborough, Inc.; Covanta Huntington Resource Recovery One Corp.; Covanta Huntington Resource Recovery Seven Corp.; Covanta Huntsville, Inc.; Covanta Energy Construction, Inc.; Covanta Energy Group, Inc. Covanta Hydro Energy, Inc.; Covanta Hydro Operations West, Inc.; Covanta Hydro Operations, Inc.; Covanta Imperial Power Services, Inc.; Covanta Kent, Inc.; Covanta Lancaster, Inc.; Covanta Lee, Inc.; Covanta Long Island, Inc.; Covanta Marion Land Corp.; Covanta Mid-Conn., Inc.; Covanta Montgomery, Inc.; Covanta New Martinsville Hydroelectric Corporation; Covanta New Martinsville Hydro-Operations Corporation; Covanta Oahu Waste Energy Recovery, Inc; Covanta Onondaga Five Corporation; Covanta Onondaga Four Corporation; Covanta Onondaga Operations, Inc.; Covanta Onondaga Three Corporation; Covanta Onondaga Two Corporation; Covanta Onondaga, Inc.; Covanta OPW Associates, Inc.; Covanta OPWH, Inc.; Covanta Pasco, Inc.; Covanta Plant Services of New Jersey, Inc.; Covanta Power Equity Corporation; Covanta Power Pacific, Inc.; Covanta Power Plant Operations; Covanta Projects of Hawaii, Inc.; Covanta Projects, Inc.; Covanta RRS Holdings Inc.; Covanta Secure Services, Inc.; Covanta SIGC Energy, Inc.; Covanta SIGC Energy II, Inc.; Covanta SIGC Geothermal Operations, Inc.; Covanta Systems, Inc.; Covanta Wallingford Associates, Inc.; Covanta Waste to Energy, Inc .; Covanta Water Holdings, Inc.; Covanta Water Systems Inc.; Covanta Water Treatment Services Inc.; DSS Environmental, Inc.; ERC Energy II, Inc.; ERC Energy, Inc.; Heber Field Energy II, Inc.; LMI, Inc.; Mammoth Geothermal Company; Mammoth Power Company; Mt. Lassen Power; Pacific Geothermal Company; Pacific Oroville Power, Inc.; Pacific Wood Fuels Company; Pacific Wood Services Company; Three Mountain Operations, Inc.; Burney Mountain Power; Covanta Alexandria/Arlington, Inc.; Covanta Bristol, Inc.; Covanta Fairfax, Inc.; Covanta Haverhill, Inc.; Covanta Indianapolis, Inc; Covanta Marion, Inc.; Covanta Omega Lease, Inc.; Covanta Stanislaus, Inc.; Haverhill Power, Inc.; and Michigan Waste Energy, Inc. The following Applicants are partnerships: Covanta Hennepin Energy Resource Co., Limited Partnership; Heber Loan Partners; Covanta Honolulu Resource Recovery Venture. The following Applicants are LLCs: Covanta Operations of Union LLC; Three Mountain Power, LLC. (b) State or other sovereign power under the laws of which organized. The following Applicants are organized under the laws of the state of Delaware: Covanta Energy Corporation; AMOR 14 Corporation; Covanta Acquisition, Inc.; Covanta Bessemer, Inc.; Covanta Cunningham Environmental Support, Inc.; Covanta Energy Americas, Inc.; Covanta Energy Construction, Inc.; Covanta Energy Group, Inc.; Covanta Energy International, Inc.; Covanta Energy Resource Corp.; Covanta Energy Services, Inc; Covanta Energy West, Inc.; Covanta Geothermal Operations Holdings, Inc.; Covanta Geothermal Operations, Inc.; Covanta Heber Field Energy, Inc.; Covanta Hennepin Energy Resource Co., Limited Partnership; Covanta Huntington Resource Recovery One Corp.; Covanta Huntington Resource Recovery Seven Corp.; Covanta Hydro Energy, Inc.; Covanta Hydro Operations West, Inc.; Covanta Long Island, Inc.; Covanta New Martinsville Hydroelectric Corporation; Covanta Onondaga Five Corporation; Covanta Onondaga Four Corporation; Covanta Onondaga Operations, Inc.; Covanta Onondaga Three Corporation; Covanta Onondaga Two Corporation; Covanta Projects, Inc.; Covanta RRS Holdings Inc.; Covanta Secure Services, Inc.; Covanta SIGC Energy, Inc.; Covanta Systems, Inc.; Covanta Waste to Energy, Inc.; Covanta Water Holdings, Inc.; Covanta Water Systems Inc.; Covanta Water Treatment Services Inc.; ERC Energy II, Inc.; ERC Energy, Inc.; Heber Field Energy II, Inc.; Three Mountain Operations, Inc.; Three Mountain Power, LLC; Covanta OPWH, Inc.; Covanta Power Equity Corporation; Covanta Omega Lease, Inc.; and Michigan Waste Energy, Inc. The following Applicants are organized under the laws of the state of California: Covanta Imperial Power Services, Inc.; Covanta Oahu Waste Energy Recovery, Inc.; Covanta Power Pacific, Inc.; Covanta Power Plant Operations; Covanta SIGC Energy II, Inc.; Covanta SIGC Geothermal Operations, Inc.; Heber Loan Partners; Mammoth Geothermal Company; Mammoth Power Company; Mt. Lassen Power; Pacific Geothermal Company; Pacific Oroville Power, Inc.; Pacific Wood Fuels Company; Pacific Wood Services Company; Burney Mountain Power; Covanta Stanislaus, Inc. The following Applicants are organized under the laws of the state of Florida: Covanta Lee, Inc.; Covanta Hillsborough, Inc.; Covanta Pasco, Inc. The following Applicants are organized under the laws of the state of Connecticut: Covanta Mid-Conn., Inc.; Covanta OPW Associates, Inc.; Covanta Wallingford Associates, Inc.; Covanta Bristol, Inc. The following Applicants are organized under the laws of the state of New York: DSS Environmental, Inc.; Covanta Onondaga, Inc. The following Applicants are organized under the laws of the state of New Jersey: Covanta Engineering Services, Inc.; Covanta Plant Services of New Jersey, Inc.; Covanta Operations of Union LLC; The following Applicants are organized under the laws of the state of Massachusetts: Covanta Haverhill Properties, Inc.; LMI, Inc.; Covanta Haverhill, Inc.; Haverhill Power, Inc. The following Applicants are organized under the laws of the state of Virginia: Covanta Alexandria/Arlington, Inc.; Covanta Fairfax, Inc. Covanta Hydro Operations, Inc. is organized under the laws of the state of Tennessee; Covanta Kent, Inc. is organized under the laws of the state of Michigan; Covanta Lancaster, Inc. is organized under the laws of the state of Pennsylvania; Covanta Marion Land Corp. and Covanta Marion, Inc. are organized under the laws of the state of Oregon; Covanta Montgomery, Inc. is organized under the laws of the state of Maryland; Covanta New Martinsville Hydro-Operations Corporation is organized under the laws of the state of West Virginia; Covanta Projects of Hawaii, Inc. and Covanta Honolulu Resource Recovery Venture is organized under the laws of the state of Hawaii; Covanta Huntsville, Inc. is organized under the laws of the state of Alabama; and Covanta Indianapolis is organized under the laws of the state of Indiana. 2. Securities Act exemption applicable. Certain of the Guarantors listed herein may be removed from the list of guarantors under the Secured Notes Indenture at a future date. Covanta intends to offer, under the terms and subject to the conditions set forth in the Debtors' Second Joint Reorganization Plan under Chapter 11 of the Bankruptcy Code (as amended, the "Reorganization Plan") and as further described in the Second Disclosure Statement with Respect to Reorganizing Debtors' Second Joint Plan of Reorganization and Liquidating Debtors' Second Joint Plan of Liquidation Under Chapter 11 of the Bankruptcy Code (as amended, the "Disclosure Statement") and Debtors' Second Joint Plan of Liquidation under Chapter 11 of the Bankruptcy Code of Covanta and certain of its subsidiaries (collectively, the "Debtors"), copies of which are included as exhibits to this application, the 8.25% Senior Secured Notes due 2011 (the "Secured Notes") and the 7.5% Subordinated Unsecured Notes due 2012 (the "Subordinated Notes" and together with the Secured Notes, the "Notes"). The Guarantors will be guarantors under the Secured Notes, but not the Subordinated Notes. The Secured Notes will be issued pursuant an indenture to be qualified under this Form T-3 (the "Secured Notes Indenture"), a copy of which is attached as exhibit T3C-1 to this application. The Subordinated Notes will be issued pursuant to an indenture also to be qualified under this Form T-3 (the "Subordinated Notes Indenture"), a copy of which is attached as exhibit T3C-2 to this application. The Notes and the Guarantees are being offered in reliance on an exemption from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), afforded by section 1145 of title 11 of the United States Code, as amended (the "Bankruptcy Code"). Generally, section 1145(a)(1) of the Bankruptcy Code exempts the offer and sale of securities under a bankruptcy reorganization plan from registration under the Securities Act and under equivalent state securities and "blue sky" laws if the following requirements are satisfied: (i) the securities are issued by the debtor (or its successor or an affiliate participating in a joint plan with the debtor) under a reorganization plan; (ii) the recipients of the securities hold a claim against the debtor, an interest in the debtor or a claim or a claim for an administrative expense against the debtor; and (iii) the securities are issued entirely in exchange for the recipient's claim against or interest in the debtor or are issued "principally" in such exchange and "partly" for cash or property. The Applicants believe that the offer and exchange of the Notes and the Guarantees under the Reorganization Plan will satisfy such requirements of section 1145(a)(1) of the Bankruptcy Code and, therefore, such offer and exchange is exempt from the registration requirements referred to above. Pursuant to the Reorganization Plan, the Secured Notes will be issued to holders of Allowed Class 3 Claims and Allowed Class 6 Claims (both as defined in the Reorganization Plan) in partial satisfaction of their claims against the Debtors. A more complete description of the Secured Notes is provided in the Secured Notes Indenture, which is attached to this application as exhibit T3C-1. Also pursuant to the Reorganization Plan, the Subordinated Notes will be issued to holders of Allowed Class 4 Claims and Allowed Class 6 Claims (both as defined in the Reorganization Plan) in satisfaction of Allowed Class 4 Claims against the Debtors and in partial satisfaction of Allowed Class 6 Claims against the Debtors. A more complete description of the Subordinated Notes is provided in the Subordinated Notes Indenture, a copy of which is attached as exhibit T3C-2 to this application. AFFILIATIONS 3. Affiliates. Set forth below is a list of all current direct and indirect subsidiaries of Covanta. Unless stated otherwise, each subsidiary is wholly owned, directly or indirectly, by Covanta (including the other Applicants). Each of the Applicants is an affiliate of the other Applicants. Affiliate Jurisdiction of Incorporation or Qualification 8309 Tujunga Avenue Corp. California Alpine Food Products, Inc. Washington Ambiente 2000 S.r.l (40% owned) Italy Americana Entertainment N.V. (80% owned) Aruba AMOR 14 Corporation Delaware Bal-Sam India Holdings Limited Mauritius BDC Liquidating Corporation Delaware Bouldin Development Corporation California Burney Mountain Power California Cladox International S.A. Uruguay Covanta Acquisition, Inc. Delaware Covanta Alexandria/Arlington, Inc. Virginia Covanta Babylon, Inc. New York Covanta Bangladesh Operating Limited Bangladesh Covanta Bangladesh Technical Services Aps Denmark Covanta Bessemer, Inc. Florida Covanta Bristol, Inc. Virginia Covanta Cayman (Sahacogen) Ltd. Cayman Islands Covanta Cayman (Rojana) Ltd. Cayman Islands Covanta Chinese Investments Limited Mauritius Covanta Concerts Holdings, Inc. (f/k/a The Metropolitan Entertainment Co., Inc.) (85% owned) New Jersey Covanta Cunningham Environmental Support, Inc. New York Covanta Energy Americas, Inc. Delaware Covanta Energy Asia Pacific Limited Hong Kong Covanta Energy China (Alpha) Ltd. Mauritius Covanta Energy China (Beta) Ltd. Mauritius Covanta Energy China (Delta) Ltd. Mauritius Covanta Energy China (Gamma) Ltd. Mauritius Covanta Energy Construction, Inc. Delaware Covanta Energy Europe Ltd. United Kingdom Covanta Energy Group, Inc. Delaware Covanta Energy India Investments Ltd. Mauritius Covanta Energy India (Balaji) Limited Mauritius Covanta Energy India CBM Limited Mauritius Covanta Energy India (Samalpatti) Limited Mauritius Covanta Energy India Private Limited India Covanta Energy International, Inc. Delaware Covanta Energy Philippines Holdings, Inc. Philippines Covanta Energy Resource Corporation Delaware Covanta Energy Sao Jeronimo, Inc. Delaware Covanta Energy Services, Inc. Delaware Covanta Energy (Thailand) Limited Thailand Covanta Energy West, Inc. Delaware Covanta Engineering Services, Inc. New Jersey Covanta Equity of Alexandria/Arlington, Inc. Virginia Covanta Equity of Stanislaus, Inc. California Covanta Fairfax, Inc. Virginia Covanta Financial Services, Inc. Delaware Covanta Five Ltd. Mauritius Covanta Four Ltd. Mauritius Covanta Geothermal Operations Holdings, Inc. Delaware Covanta Geothermal Operations, Inc. Delaware Covanta Haverhill Associates Massachusetts Covanta Haverhill, Inc. Massachusetts Covanta Haverhill Properties, Inc. Massachusetts Covanta Hennepin Energy Resource Co., L.P. Delaware Covanta Heber Field Energy, Inc. Delaware Covanta Honolulu Resource Recovery Venture Hawaii Covanta Huntington Limited Partnership Delaware Covanta Hillsborough, Inc. Florida Covanta Huntington Resource Recovery One Corporation Delaware Covanta Huntington Resource Recovery Seven Corporation Delaware Covanta Huntington, Inc. New York Covanta Huntsville, Inc. Alabama Covanta Hydro Energy, Inc. Delaware Covanta Hydro Operations West, Inc. Delaware Covanta Hydro Operations, Inc. Tennessee Covanta Imperial Power Services, Inc. California Covanta Indianapolis, Inc. Indiana Covanta India Operating Private Limited (90% owned) India Covanta Kent, Inc. Michigan Covanta Key Largo, Inc. Florida Covanta Lake, Inc. Florida Covanta Lancaster, Inc. Pennsylvania Covanta Lee, Inc. Florida Covanta Long Island, Inc. New York Covanta Marion Land Corporation Oregon Covanta Marion, Inc. Oregon Covanta Mid-Conn., Inc. Connecticut Covanta Montgomery, Inc. Maryland Covanta New Martinsville Hydroelectric Corporation Delaware Covanta New Martinsville Hydro-Operations Corp West Virginia Covanta Northwest Puerto Rico, Inc. Puerto Rico Covanta Oahu Waste Energy Recovery, Inc. California Covanta Oil & Gas, Inc. Delaware Covanta Omega Lease, Inc. Delaware Covanta One Limited Mauritius Covanta Onondaga Five Corporation Delaware Covanta Onondaga Four Corporation Delaware Covanta Onondaga Limited Partnership Delaware Covanta Onondaga Operations, Inc. Delaware Covanta Onondaga Three Corporation Delaware Covanta Onondaga Two Corporation Delaware Covanta Onondaga, Inc. New York Covanta Operations of Union, LLC New Jersey Covanta OPW Associates, Inc. Connecticut Covanta OPWH, Inc. Delaware Covanta Pasco, Inc. Florida Covanta Philippines Operating, Inc. Cayman Islands Covanta Plant Services of New Jersey, Inc. New Jersey Covanta Power Development of Bolivia, Inc. Delaware Covanta Power Development, Inc. Delaware Covanta Power Equity Corporation Delaware Covanta Power International Holdings, Inc. Delaware Covanta Power Plant Operations California Covanta Power Pacific, Inc. California Covanta Projects of Hawaii, Inc. Hawaii Covanta Projects of Wallingford, L.P. Delaware Covanta Projects, Inc. Delaware Covanta RRS Holdings Inc. Delaware Covanta Samalpatti Operating Pvt. Ltd. India Covanta SBR Associates Massachusetts Covanta Secure Services USA, Inc. Delaware Covanta Secure Services, Inc. Delaware Covanta SIGC Energy, Inc. Delaware Covanta SIGC Energy II, Inc. California Covanta SIGC Geothermal Operations, Inc. California Covanta Stanislaus, Inc. California Covanta Systems, Inc. Delaware Covanta Tampa Bay, Inc. Florida Covanta Tampa Construction, Inc. Delaware Covanta Three Limited Mauritius Covanta Tulsa, Inc. Oklahoma Covanta Two Limited Mauritius Covanta Union, Inc. New Jersey Covanta Wallingford Associates, Inc. Connecticut Covanta Warren Energy Resource Co., L.P. Delaware Covanta Waste Solutions, Inc. Delaware Covanta Waste to Energy of Italy, Inc. Delaware Covanta Waste to Energy, Inc. Delaware Covanta Waste to Energy Asia Investments Mauritius Covanta Water Holdings, Inc. Delaware Covanta Water Systems, Inc. Delaware Covanta Water Treatment Services, Inc. Delaware Doggie Diner, Inc. Delaware DSS Environmental, Inc. (90% owned) New York Edison Bataan Cogeneration Corporation Philippines El Gorguel Energia S.L. Spain Enereurope Holdings III B.V. Netherlands ERC Energy II, Inc. Delaware ERC Energy, Inc. Delaware Estadio Olimpico de Sevilla, S.A. (15.9% owned) Spain Financiere Ogden France GBL Power Limited (49% owned) India Generating Resource Recovery Partners, L.P. (50% owned) California Goa Holdings Limited Mauritius Great Eastern Energy Corp Limited (29% owned) Thailand Greenway Insurance Company of Vermont Vermont Gulf Coast Catering Company, Inc. Louisiana Haugzhou Linan Ogden-Jinjiang Cogeneration Co., Ltd. (60% owned) China Haverhill Power, Inc. Massachusetts Heber Field Energy II, Inc. Delaware Heber Loan Partners California Hidro Operaciones Don Pedro S.A. Costa Rica Hungarian-American Geothermal Limited Liability Company (37.5% owned) Hungary Island Power Corporation (40% owned) Philippines J.R. Jack's Construction Corporation Nevada Koma Kulshan Associates (50% owned) California Lenzar Electro-Optics, Inc. Delaware LINASA Cogeneracion y Asociados, S.L. (50% owned) Spain LMI, Inc. Massachusetts Logistic Operations, Inc. Virginia Madurai Power Corporation Pvt. Limited (74.8% owned) India Magellan Cogeneration, Inc. Philippines Mammoth Geothermal Company California Mammoth Power Associates, L.P. (50% owned) California Mammoth Power Company California Mecaril, S.A. Uruguay Menezul, S.A. Uruguay Michigan Waste Energy, Inc. Delaware Modigold, S.A. Uruguay Mt. Lassen Power California NEPC Consortium Power Limited (45.1% owned) Bangladesh Offshore Food Service, Inc. Louisiana OFS Equity of Alexandria/Arlington, Inc. Virginia OFS Equity of Babylon, Inc. New York OFS Equity of Delaware, Inc. Delaware OFS Equity of Huntington, Inc. New York OFS Equity of Indianapolis, Inc. Indiana OFS Equity of Stanislaus, Inc. California Ogden Aeropuertos RD S.A. (f/k/a Paltir, S.A.) Uruguay Ogden Alimentos Comercio e Servicos Ltda. Brazil Ogden Allied Abatement and Decontamination Service, Inc. New York Ogden Allied Maintenance Corporation New York Ogden Allied Payroll Services, Inc. New York Ogden Allied Services GmbH Germany Ogden Attractions, Inc. Delaware Ogden Aviation Distributing, Inc. New York Ogden Aviation Fueling Company of Virginia, Inc. Delaware Ogden Aviation Security Services of Indiana Indiana Ogden Aviation Service Company of Colorado Colorado Ogden Aviation Service Company of Pennsylvania, Inc. Pennsylvania Ogden Aviation Services International Corporation New York Ogden Aviation Terminal Services, Inc. Massachusetts Ogden Aviation, Inc. Delaware Ogden Balaji O&M Services Private Limited (99.98% owned) India Ogden Cargo Spain, Inc. Delaware Ogden Central and South America, Inc. Delaware Ogden Cisco, Inc. Delaware Ogden Communication, Inc. Delaware Ogden Constructors, Inc. Florida Ogden do Brasil Participacoes S/C Ltda. Brazil Ogden Energy of Bongaigaon Private Limited India Ogden Energy Gulf Limited Mauritius Ogden Energy India (Bakreshwar) Limited Mauritius Ogden Entertainment Services de Mexico, S.A. de C.V. Mexico Mexico Ogden Entertainment Services Spain, S.A. Spain Ogden Environmental and Energy Services Co., Inc. Delaware Ogden Facility Holdings, Inc. Delaware Delaware Ogden Facility Management Corporation of Anaheim California Ogden Facility Management Corporation of West Virginia West Virginia Ogden Film and Theatre, Inc. Delaware Ogden Firehole Entertainment Corporation Delaware Ogden Food Service Corporation of Milwaukee, Inc. Wisconsin Ogden Gaming of Ontario Limited Canada Ogden HCI Services (60% owned) Washington Ogden Holdings, S.A. Argentina Ogden International Europe, Inc. Delaware Ogden Leisure, Inc. Delaware Ogden Logistic Service Maryland Ogden Management Services, Inc. Delaware Ogden Martin Systems of Nova Scotia Limited Canada Ogden MEI, LLC Delaware Ogden New York Services, Inc. New York Ogden Palladium Services, Inc. Canada Ogden Pipeline Service Corporation Delaware Ogden Power Aqua y Energia Torre Pacheco, S.A. (83.3% owned) Spain Ogden Power Development - Cayman, Inc. Cayman Islands Ogden PS&M Entertainment Limited (50% owned) Brazil Ogden Services Corporation Delaware Ogden Spain, S.A. Spain Ogden Support Services, Inc. Delaware Ogden Taiwan Investments Limited Mauritius Ogden Technology Services Corporation Delaware Ogden Transition Corporation Delaware Olmec Insurance Limited Bermuda OPDB Limited Cayman Islands Operaciones LICA S.L. Spain OPI Carmona Limited Cayman Islands OPI Carmona One Limited Cayman Islands OPI Quezon, Inc. Delaware PA Aviation Fuel Holdings, Inc. Delaware Pacific Energy Operating Group, LP (50% owned) California Pacific Energy Resources, Inc. California Pacific Geothermal Company California Pacific Hydropower Company California Pacific Oroville Power, Inc. California Pacific Recovery Corporation California Pacific Wood Fuels Company California Pacific Wood Services Company California Pacific Ultrapower Chinese Station (50% owned) California Parque Isla Magica, S.A. (26.12% owned) Spain Penstock Power Company California Philadelphia Fuel Facilities Corporation Pennsylvania Power Operations and Maintenance Ltd Bermuda Prima S.r.l. (13% owned) Italy Quezon Equity Funding Ltd. (27.5% owned) Cayman Islands Quezon Power, Inc. (27.5% owned) Cayman Islands Quezon Power (Philippines) Limited (98% owned) Philippines Rent LLC (.01% owned) New York Samalpatti Power Company Private Limited (60% owned) India SJ Investors Participacoes Ltda. (90% owned) Brazil South Fork II Associates, LP (50% owned) Washington Spectra Enterprises Association, L.P. Delaware Taixing Ogden-Yanjiang Cogeneration Co., Limited (60% owned) China Three Mountain Power, LLC Delaware Three Mountain Operations, Inc. Delaware Zibo Ogden-Bohui Cogeneration Co. Limited (60% owned) China Set forth below is a list of all direct and indirect subsidiaries of Covanta to exist upon consummation of the Reorganization Plan. Unless stated otherwise, each subsidiary will be wholly owned, directly or indirectly, by Covanta (including the other Applicants) and Covanta will be wholly owned by Danielson Holding Corporation ("DHC"). Affiliate Jurisdiction of Incorporation or Qualification 8309 Tujunga Avenue Corp. California Ambiente 2000 S.r.l (40% owned) Italy Americana Entertainment N.V. (80% owned) Aruba AMOR 14 Corporation Delaware Bal-Sam India Holdings Limited Mauritius Bouldin Development Corporation California Burney Mountain Power California Cladox International S.A. Uruguay Covanta Acquisition, Inc. Delaware Covanta Alexandria/Arlington, Inc. Virginia Covanta Babylon, Inc. New York Covanta Bangladesh Operating Limited Bangladesh Covanta Bangladesh Technical Services Aps Denmark Covanta Bessemer, Inc. Florida Covanta Bristol, Inc. Virginia Covanta Cayman (Sahacogen) Ltd. Cayman Islands Covanta Cayman (Rojana) Ltd. Cayman Islands Covanta Chinese Investments Limited Mauritius Covanta Cunningham Environmental Support, Inc. New York Covanta Energy Americas, Inc. Delaware Covanta Energy Asia Pacific Limited Hong Kong Covanta Energy China (Alpha) Ltd. Mauritius Covanta Energy China (Beta) Ltd. Mauritius Covanta Energy China (Delta) Ltd. Mauritius Covanta Energy China (Gamma) Ltd. Mauritius Covanta Energy Construction, Inc. Delaware Covanta Energy Europe Ltd. United Kingdom Covanta Energy Group, Inc. Delaware Covanta Energy India Investments Ltd. Mauritius Covanta Energy India (Balaji) Limited Mauritius Covanta Energy India CBM Limited Mauritius Covanta Energy India (Samalpatti) Limited Mauritius Covanta Energy India Private Limited India Covanta Energy International, Inc. Delaware Covanta Energy Philippines Holdings, Inc. Philippines Covanta Energy Resource Corporation Delaware Covanta Energy Services, Inc. Delaware Covanta Energy (Thailand) Limited Thailand Covanta Energy West, Inc. Delaware Covanta Engineering Services, Inc. New Jersey Covanta Equity of Alexandria/Arlington, Inc. Virginia Covanta Equity of Stanislaus, Inc. California Covanta Fairfax, Inc. Virginia Covanta Five Ltd. Mauritius Covanta Four Ltd. Mauritius Covanta Geothermal Operations Holdings, Inc. Delaware Covanta Geothermal Operations, Inc. Delaware Covanta Haverhill Associates Massachusetts Covanta Haverhill, Inc. Massachusetts Covanta Haverhill Properties, Inc. Massachusetts Covanta Hennepin Energy Resource Co., L.P. Delaware Covanta Heber Field Energy, Inc. Delaware Covanta Honolulu Resource Recovery Venture Hawaii Covanta Huntington Limited Partnership Delaware Covanta Hillsborough, Inc. Florida Covanta Huntington Resource Recovery One Corporation Delaware Covanta Huntington Resource Recovery Seven Corporation Delaware Covanta Huntsville, Inc. Alabama Covanta Hydro Energy, Inc. Delaware Covanta Hydro Operations West, Inc. Delaware Covanta Hydro Operations, Inc. Tennessee Covanta Imperial Power Services, Inc. California Covanta Indianapolis, Inc. Indiana Covanta India Operating Private Limited (90% owned) India Covanta Kent, Inc. Michigan Covanta Lake, Inc. Florida Covanta Lancaster, Inc. Pennsylvania Covanta Lee, Inc. Florida Covanta Long Island, Inc. New York Covanta Marion Land Corporation Oregon Covanta Marion, Inc. Oregon Covanta Mid-Conn., Inc. Connecticut Covanta Montgomery, Inc. Maryland Covanta New Martinsville Hydroelectric Corporation Delaware Covanta New Martinsville Hydro-Operations Corporation West Virginia Covanta Oahu Waste Energy Recovery, Inc. California Covanta Omega Lease, Inc. Delaware Covanta One Limited Mauritius Covanta Onondaga Five Corporation Delaware Covanta Onondaga Four Corporation Delaware Covanta Onondaga Limited Partnership Delaware Covanta Onondaga Operations, Inc. Delaware Covanta Onondaga Three Corporation Delaware Covanta Onondaga Two Corporation Delaware Covanta Onondaga, Inc. New York Covanta Operations of Union, LLC New Jersey Covanta OPW Associates, Inc. Connecticut Covanta OPWH, Inc. Delaware Covanta Pasco, Inc. Florida Covanta Philippines Operating, Inc. Cayman Islands Covanta Plant Services of New Jersey, Inc. New Jersey Covanta Power Development of Bolivia, Inc. Delaware Covanta Power Development, Inc. Delaware Covanta Power Equity Corporation Delaware Covanta Power International Holdings, Inc. Delaware Covanta Power Plant Operations California Covanta Power Pacific, Inc. California Covanta Projects of Hawaii, Inc. Hawaii Covanta Projects of Wallingford, L.P. Delaware Covanta Projects, Inc. Delaware Covanta RRS Holdings Inc. Delaware Covanta Samalpatti Operating Pvt. Ltd. India Covanta SBR Associates Massachusetts Covanta Secure Services, Inc. Delaware Covanta SIGC Energy, Inc. Delaware Covanta SIGC Energy II, Inc. California Covanta SIGC Geothermal Operations, Inc. California Covanta Stanislaus, Inc. California Covanta Systems, Inc. Delaware Covanta Tampa Bay, Inc. Florida Covanta Tampa Construction, Inc. Delaware Covanta Three Limited Mauritius Covanta Two Limited Mauritius Covanta Union, Inc. New Jersey Covanta Wallingford Associates, Inc. Connecticut Covanta Warren Energy Resource Co., L.P. Delaware Covanta Waste to Energy of Italy, Inc. Delaware Covanta Waste to Energy, Inc. Delaware Covanta Waste to Energy Asia Investments Mauritius Covanta Water Holdings, Inc. Delaware Covanta Water Systems, Inc. Delaware Covanta Water Treatment Services, Inc. Delaware DSS Environmental, Inc. (90% owned) New York Edison Bataan Cogeneration Corporation Philippines El Gorguel Energia S.L. Spain Enereurope Holdings III B.V. Netherlands ERC Energy II, Inc. Delaware ERC Energy, Inc. Delaware Estadio Olimpico de Sevilla, S.A. (15.9% owned) Spain Financiere Ogden France GBL Power Limited (49% owned) India Generating Resource Recovery Partners, L.P. (50% owned) California Goa Holdings Limited Mauritius Great Eastern Energy Corporation Limited (29% owned) Thailand Greenway Insurance Company of Vermont Vermont Haugzhou Linan Ogden-Jinjiang Cogeneration Co., Ltd. (60% owned) China Haverhill Power, Inc. Massachusetts Heber Field Energy II, Inc. Delaware Heber Loan Partners California Hidro Operaciones Don Pedro S.A. Costa Rica Hungarian-American Geothermal Limited Liability Company (37.5% owned) Hungary Island Power Corporation (40% owned) Philippines Koma Kulshan Associates (50% owned) California LINASA Cogeneracion y Asociados, S.L. (50% owned) Spain LMI, Inc. Massachusetts Madurai Power Corporation Pvt. Limited (74.8% owned) India Magellan Cogeneration, Inc. Philippines Mammoth Geothermal Company California Mammoth Pacific, L.P. (50% owned) California Mammoth Power Associates, L.P. (50% owned) California Mammoth Power Company California Mecaril, S.A. Uruguay Menezul, S.A. Uruguay Michigan Waste Energy, Inc. Delaware Modigold, S.A. Uruguay Mt. Lassen Power California NEPC Consortium Power Limited (45.1% owned) Bangladesh Ogden Aeropuertos RD S.A. (f/k/a Paltir, S.A.) Uruguay Ogden Alimentos Comercio e Servicos Ltda. Brazil Ogden Allied Services GmbH Germany Ogden Balaji O&M Services Private Limited (99.98% owned) India Ogden do Brasil Participacoes S/C Ltda. Brazil Ogden Energy of Bongaigaon Private Limited India Ogden Energy Gulf Limited Mauritius Ogden Energy India (Bakreshwar) Limited Mauritius Ogden Entertainment Services de Mexico, S.A. de C.V. Mexico Ogden Entertainment Services Spain, S.A. Spain Ogden Gaming of Ontario Limited Canada Ogden HCI Services (60% owned) Washington Ogden Holdings, S.A. Argentina Ogden Logistic Service Maryland Ogden Martin Systems of Nova Scotia Limited Canada Ogden MEI, LLC Delaware Ogden Palladium Services, Inc. Canada Ogden Power Aqua y Energia Torre Pacheco, S.A. (83.3% owned) Spain Ogden Power Development - Cayman, Inc. Cayman Islands Ogden PS&M Entertainment Limited (50% owned) Brazil Ogden Spain, S.A. Spain Ogden Taiwan Investments Limited Mauritius Olmec Insurance Limited Bermuda OPDB Limited Cayman Islands Operaciones LICA S.L. Spain OPI Carmona Limited Cayman Islands OPI Carmona One Limited Cayman Islands OPI Quezon, Inc. Delaware Pacific Energy Operating Group, LP (50% owned) California Pacific Energy Resources, Inc. California Pacific Geothermal Company California Pacific Hydropower Company California Pacific Oroville Power, Inc. California Pacific Recovery Corporation California Pacific Wood Fuels Company California Pacific Wood Services Company California Pacific Ultrapower Chinese Station (50% owned) California Parque Isla Magica, S.A. (26.12% owned) Spain Penstock Power Company California Power Operations and Maintenance Ltd Bermuda Prima S.r.l. (13% owned) Italy Quezon Equity Funding Ltd. (27.5% owned) Cayman Islands Quezon Power, Inc. (27.5% owned) Cayman Islands Quezon Power (Philippines) Limited (98% owned) Philippines Rent LLC (.01% owned) New York Samalpatti Power Company Private Limited (60% owned) India SJ Investors Participacoes Ltda. (90% owned) Brazil Spectra Enterprises Association, L.P. Delaware South Fork II Associates, LP (50% owned) Washington Taixing Ogden-Yanjiang Cogeneration Co., Limited (60% owned) China Three Mountain Power, LLC Delaware Three Mountain Operations, Inc. Delaware Zibo Ogden-Bohui Cogeneration Co. Limited (60% owned) China MANAGEMENT AND CONTROL 4. Directors and executive officers. [TO COME] 5. Principal owners of voting securities. As of the date of this application, Covanta believes that no person owns 10% or more of Covanta's voting securities. Upon consummation of the Reorganization Plan, DHC will own 100% of the voting securities of Covanta. DHC's mailing address is 2 North Riverside Plaza, Suite 600, Chicago, IL 60606. The following chart shows the principal owners of voting securities of the Guarantors as of the date of this application. It is currently anticipated that the information on the following chart will not change upon consummation of the Reorganization Plan. The mailing address for each owner listed below is c/o Covanta Energy Corporation, 40 Lane Road, Fairfield, NJ 07004.
-------------------------- --------------------------------------- ------------------------------ ------------------------------- Name of Owner(s) Title of Class Owned Amount Owned Percentage of Voting Securities Owned -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta SIGC Energy Inc. Common Stock of AMOR 14 100% 100% Corporation -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Water Systems, Common Stock of Covanta 100% 100% Inc. Acquisition, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Water Systems, Common Stock of Covanta 100% 100% Inc. Bessemer, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Acquisition, Common Stock of Covanta 100% 100% Inc. Cunningham Environmental Support Services, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy West, Common Stock of Covanta Energy 100% 100% Inc. Americas, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta Energy 100% 100% Americas, Inc. Construction, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta Energy 100% 100% Corporation Group, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Projects, Inc. Common Stock of Covanta Energy 100% 100% International, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Waste to Common Stock of Covanta Energy 100% 100% Energy, Inc. Resource Corp. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Waste to Common Stock of Covanta Energy 100% 100% Energy, Inc. Services, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta Energy 100% 100% International, Inc. West, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Engineering Services, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta 100% 100% Americas, Inc. Geothermal Operations Holdings, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta 100% 100% Americas, Inc. Geothermal Operations, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Haverhill Properties, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Equity Common Stock of Covanta Heber 100% 100% Corporation Field Energy, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Resource Partnership Interests in Covanta Covanta Energy Resource Covanta Energy Resource Corp. Hennepin Energy Resource Co., Corp. owns 99% as General Corp. owns 99% as General Limited Partnership Partner Partner -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Hillsborough, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Huntington Resource Recovery One Corp. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Huntington Resource Recovery Seven Corp. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Huntsville, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Equity Common Stock of Covanta Hydro 100% 100% Corporation Energy, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta Hydro 100% 100% Americas, Inc. Operations West, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta Hydro 100% 100% Americas, Inc. Operations, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta Imperial 100% 100% Americas, Inc. Power Services, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Kent, Inc. 100% 100% -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Lancaster, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Lee, Inc. 100% 100% -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Long 100% 100% Island, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Marion 100% 100% Land Corp. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta RRS Holdings, Common Stock of Covanta Mid-Conn, 100% 100% Inc. Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Montgomery, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Equity Common Stock of Covanta New 100% 100% Corporation Martinsville Hydroelectric Corporation -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta New 100% 100% Americas, Inc. Martinsville Hydro-Operations Corporation -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta RRS Holdings, Common Stock of Covanta Oahu 100% 100% Inc. Waste Energy Recovery Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Onondaga 100% 100% Five Corp. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Onondaga 100% 100% Four Corp. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Onondaga 100% 100% Operations, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Onondaga 100% 100% Three Corp. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Onondaga 100% 100% Two Corp. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Onondaga, 100% 100% Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Projects, Inc. Equity Interests in Covanta Covanta Projects, Inc. Operations of Union, LLC owns 99% as Managing Member Covanta Projects, Inc. owns 99% as Managing Member -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Waste to Common Stock of Covanta OPW 100% 100% Energy, Inc. Associates, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Waste to Common Stock of Covanta OPWH, Inc. 100% 100% Energy, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Pasco, 100% 100% Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta Plant 100% 100% Services, Inc. Services of New Jersey, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta Power 100% 100% Americas, Inc. Equity Corporation -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta Power 100% 100% Americas, Inc. Pacific, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Pacific, Common Stock of Covanta Power 100% 100% Inc. Plant Operations -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta RRS Holdings, Common Stock of Covanta Projects 100% 100% Inc. of Hawaii, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Group, Common Stock of Covanta Projects, 100% 100% Inc. Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Waste to Common Stock of Covanta RRS 100% 100% Energy, Inc. Holdings Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Waste to Common Stock of Covanta Secure 100% 100% Energy, Inc. Services, Inc -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta SIGC 100% 100% Americas, Inc. Energy, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta SIGC 100% 100% Americas, Inc. Energy II, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Covanta SIGC 100% 100% Americas, Inc. Geothermal Operations, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Waste to Common Stock of Covanta Systems, 100% 100% Energy, Inc. Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Waste to Common Stock of Covanta 100% 100% Energy, Inc. Wallingford Associates, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Projects, Inc. Common Stock of Covanta Waste to 100% 100% Energy, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Projects, Inc. Common Stock of Covanta Water 100% 100% Holdings, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Water Holdings, Common Stock of Covanta Water 100% 100% Inc. Systems, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Water Holdings, Common Stock of Covanta Water 100% 100% Inc. Treatment Services, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Water Systems, Common Stock of DSS 90% Inc. Environmental, Inc. 90% -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Equity Common Stock of ERC Energy II, 100% 100% Corporation Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Common Stock of ERC Energy, Inc. 100% 100% International Holdings, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Equity Common Stock of Heber Field 100% 100% Corporation Energy II, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- ERC Energy Inc. and ERC Partnership Interests in Heber ERC Energy Inc. owns 50% ERC Energy, Inc. owns a 50% Energy II, Inc. Loan Partners as General Partner GP interest; ERC Energy II, Inc. owns a ERC Energy II, Inc. owns 50% GP interest. 50% as General Partner -------------------------- --------------------------------------- ------------------------------ ------------------------------- Haverhill Power, Inc. Common Stock of LMI, Inc. 100% 100% -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Pacific, Common Stock of Mammoth 100% 100% Inc. Geothermal Company -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Pacific, Common Stock of Mammoth Power 100% 100% Inc. Company -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Common Stock of Mt. Lassen Power 100% 100% Power International Holdings, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Pacific, Common Stock of Pacific 100% 100% Inc. Geothermal Company -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Pacific, Common Stock of Pacific Oroville 100% 100% Inc. Power, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Pacific, Common Stock of Pacific Wood 100% 100% Inc. Fuels Company -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Pacific, Common Stock of Pacific Wood 100% 100% Inc. Services Company -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Common Stock of Three Mountain 100% 100% Americas, Inc. Operations, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Energy Equity Interest in Three Mountain 100% 100% Americas, Inc. Power, LLC -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Power Pacific, Equity Interests in Burney 100% 100% Inc. Mountain Power -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Alexandria/Arlington, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Bristol 100% 100% -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Fairfax, 100% 100% Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Haverhill, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Projects of Partnership Interest in Covanta Covanta Projects of Covanta Projects of Hawaii, Inc. and Honolulu Resource Recovery Venture Hawaii, Inc. owns 50% as Hawaii, Inc. owns a 50% GP Covanta Oahu Waste general partner; Covanta Interest; Covanta Oahu Energy Recovery, Inc. Oahu Waste Energy Waste Energy Recovery, Inc. Recovery, Inc. owns 50% as owns a 50% GP Interest general partner -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Indianapolis, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta Marion, 100% 100% Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Haverhill, Inc. Common Stock of Covanta Omega 100% 100% Lease, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Systems, Inc. Common Stock of Covanta 100% 100% Stanislaus, Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta Haverhill, Inc. Common Stock of Haverhill Power, 100% 100% Inc. -------------------------- --------------------------------------- ------------------------------ ------------------------------- Covanta RRS Holdings, Common Stock of Michigan Waste to 100% 100% Inc. Energy, Inc. -------------------------- --------------------------------------- ------------------------------ -------------------------------
UNDERWRITERS 6. Underwriters. Not applicable. CAPITAL SECURITIES 7. Capitalization. The following table sets forth certain information with respect to each authorized class of securities of Covanta as of the date of this application. ----------------------------------- ------------------------------------------- Name Title of Class and Amount Authorized and Outstanding ----------------------------------- ------------------------------------------- Covanta Energy Corporation Common Stock Authorized: 80,000,000 shares at $.50 par value Issued and Outstanding: 49,824,251 shares $1.875 Cumulative Convertible Preferred Stock (Series A) Authorized: 4,000,000 shares Issued and Outstanding: 33,049 shares 9.25% Debentures due 2022 Authorized: $100,000,000 Issued and Outstanding: $100,000,000 6% Convertible Debentures due June 1, 2002 Authorized: $85,000,000 Issued and Outstanding: $85,000,000 5.75% Convertible Debentures due October 20, 2002 Authorized: $75,000,000 Issued and Outstanding: $63,650,000 ----------------------------------- ------------------------------------------- The following is a brief outline of the voting rights of each class of Covanta's voting securities: The holders of common stock possess full voting power with respect to the election of directors and all other purposes, except as limited by the Delaware General Corporation Law and except as described below. Each holder of common stock is entitled to one vote for each full share of common stock then issued and outstanding and held in such record holder's name. Holders of common stock vote together with the holders of Series A preferred stock and would vote together with the holders of any other series of preferred stock that may be issued and entitled to vote in such manner, and not as a separate class. The Company's Certificate of Incorporation does not provide for either preemptive rights or cumulative voting with respect to common stock or preferred stock. The holders of Series A preferred stock are entitled to one-half vote for each share of Series A preferred stock and except as described below, vote together as a class with the holders of common stock. However, if at any time dividends with respect to the Series A preferred stock have not been paid in an amount equal to or exceeding the dividends payable in respect of six quarterly periods, then the holders of Series A preferred stock, voting as a separate class with each share of Series A preferred stock having one vote, are entitled to elect two additional directors to the Board of Directors at the next annual meeting of stockholders in lieu of voting together with the holders of common stock in the election of directors, with such right continuing until all dividends in default have been paid. In addition, the separate consent or approval of at least two-thirds of the number of shares of any series of preferred stock then outstanding is required before the Company can undertake certain transactions, as specified in the Company's Certificate of Incorporation, that may have the effect of adversely affecting the rights of such series. The following table sets forth certain information with respect to each authorized class of securities of all Guarantors as of the date of this application:
---------------------------- ------------------------------------- ----------------------------------------- Name Title of Class Amount Authorized and Outstanding ---------------------------- ------------------------------------- ----------------------------------------- AMOR 14 Corporation Common Stock Authorized: 5,000 shares at $1.00 par value Issued and Outstanding: 5,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Acquisition, Common Stock Authorized: 100 shares at $1.00 Inc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Bessemer, Common Stock Authorized: 100 shares at $1.00 Inc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Cunningham Common Stock Authorized: 200 shares at no par Environmental Support value Services, Inc. Issued and Outstanding: 10 shares issued ---------------------------- ------------------------------------- ----------------------------------------- Covanta Energy Common Stock Authorized: 1,000 shares at $1.00 Americas, Inc. par value Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Energy Common Stock Authorized: 100 shares of common Construction, Inc. stock at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Energy Group, Common Stock Authorized: 100 shares at $1.00 Inc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Energy Common Stock Authorized: 100 shares at $1.00 InternationalInc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Energy Common Stock Authorized: 1,000 shares at $1.00 Resource Corp. par value Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Energy Common Stock Authorized: 100 shares at $1.00 Services, Inc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Energy West, Common Stock Authorized: 100 shares at $1.00 Inc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Engineering Common Stock Authorized: 100 shares at $1.00 Services, Inc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Geothermal Common Stock Authorized: 100 shares at $1.00 Operations Holdings, par value Inc. Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Geothermal Common Stock Authorized: 1,500 shares at no par Operations, Inc. value Issued and Outstanding: 1,500 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Haverhill Common Stock Authorized: 100 shares at $1.00 Properties, Inc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Heber Field Common Stock Authorized: 1500 shares at no par Energy, Inc. value Issued and Outstanding: 1500 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Hennepin Equity Interest Covanta Energy Resource Corp., Energy Resource Co., General Partner - 99% Limited Partnership Covanta OPWH, Inc., Limited Partner - 1% ---------------------------- ------------------------------------- ----------------------------------------- Covanta Hillsborough, Common Stock Authorized: 100 shares at $1.00 Inc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Huntington Common Stock Authorized: 1,000 shares at $1.00 Resource par value Recovery One Corp. Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Huntington Common Stock Authorized: 100 shares at no par Resource value Recovery Seven Corp. Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Huntsville, Common Stock Authorized: 100 shares at $1.00 par Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Hydro Energy, Common Stock Authorized: 1,500 shares at no par Inc. value Issued and Outstanding: 1,500 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Hydro Common Stock Authorized: 100 shares at $1.00 par Operations value West, Inc. Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Hydro Common Stock Authorized: 100 shares at $1.00 par Operations, Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Imperial Power Common Stock Authorized: 1,000 shares at no par Services, Inc. value Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Kent, Inc. Common Stock Authorized: 100 shares at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Lancaster, Inc. Common Stock Authorized: 100 shares at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Lee, Inc. Common Stock Authorized: 100 shares at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Long Island, Common Stock Authorized: 100 shares at no par Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Marion Land Preferred Stock and Common Authorized: Corp. Stock 300 preferred shares 1,000 common shares Issued and Outstanding: 100 common shares and 300 preferred shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Mid-Conn, Inc. Common Stock Authorized: 1,000 shares at $1.00 par value Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Montgomery, Common Stock Authorized: 100 shares at $1.00 par Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta New Common Stock Authorized: 10 shares at no par Martinsville value Hydroelectric Corporation Issued and Outstanding: 10 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta New Common Stock Authorized: 1,000 shares at $.01 Martinsville par value Hydro-Operations Corporation Issued and Outstanding: 400 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Oahu Waste Common Stock Authorized: 1,000 shares at no par Energy value Recovery Inc. Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Onondaga Five Common Stock Authorized: 100 shares at $1.00 par Corp. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Onondaga Four Common Stock Authorized: 100 shares at $1.00 par Corp. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Onondaga Common Stock Authorized: 100 shares at $1.00 par Operations, Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Onondaga Three Common Stock Authorized: 100 shares at $1.00 par Corp. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Onondaga Two Common Stock Authorized: 100 shares at $1.00 par Corp. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Onondaga, Inc. Common Stock Authorized: 100 shares at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Operations of Equity Interests Covanta Projects, Inc. owns 99% Union, LLC Covanta Waste to Energy, Inc. owns 1% ---------------------------- ------------------------------------- ----------------------------------------- Covanta OPW Common Stock Authorized: 100 shares at $1.00 par Associates, Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta OPWH, Inc. Common Stock Authorized: 100 shares at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Pasco, Inc. Common Stock Authorized: 100 shares at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Plant Services Common Stock Authorized: 100 shares at $1.00 par of New Jersey, Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Power Equity Common Stock Authorized: Corporation A) 1,000 shares of Class A Common at $1.00 par value B) 250 shares of Class B Common at $.01 par value Issued and Outstanding: 1,000 shares of Common Class A ---------------------------- ------------------------------------- ----------------------------------------- Covanta Power Pacific, Common Stock Authorized: 10 shares at $1.00 par Inc. value Issued and Outstanding: 10 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Power Plant Common Stock Authorized: 10,000 at no par value Operations Issued and Outstanding: 10 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Projects of Common Stock Authorized: 1,000 shares at $1.00 Hawaii, Inc. par value Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Projects, Inc. Preferred Stock and Common Authorized: 40,000,000 common Stock shares at $1.00 par value 1,000,000 preferred shares at $.50 par value Issued and Outstanding: 1,000 common shares Preferred shares have not been issued. ---------------------------- ------------------------------------- ----------------------------------------- Covanta RRS Holdings Common Stock Authorized: 100 shares at $1.00 Inc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Secure Common Stock Authorized: 100 shares at $1.00 Services, Inc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta SIGC Energy, Common Stock Authorized: 1000 shares at $1.00 Inc. par value Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta SIGC Energy Common Stock Authorized: 1000 shares at $1.00 II, Inc. par value Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta SIGC Geothermal Common Stock Authorized: 500 shares at no par Operations, Inc. value Issued and Outstanding: 500 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Systems, Inc. Common Stock Authorized: 100 shares at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Wallingford Common Stock Authorized: 100 shares at $1.00 par Associates, Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Waste to Common Stock Authorized: 100 shares at $1.00 par Energy, Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Water Common Stock Authorized: 100 shares at $1.00 par Holdings, Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Water Systems, Common Stock Authorized: 100 shares at $1.00 par Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Water Treatment Common Stock Authorized: 100 shares at $1.00 par Services, Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- DSS Environmental, Inc. Preferred Stock and Common Authorized: Stock 100 common shares at $1.00 par value 20 preferred shares at no par value Issued and Outstanding: 100 common shares No preferred shares have been issued ---------------------------- ------------------------------------- ----------------------------------------- ERC Energy II, Inc. Common Stock Authorized: 100 shares at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- ERC Energy, Inc. Common Stock Authorized: 2,000 shares at $.05 par value Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Heber Field Energy II, Common Stock Authorized: 100 shares at $1.00 par Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Heber Loan Partners Equity Interests ERC Energy Inc. - 50% ERC Energy II, Inc. - 50% ---------------------------- ------------------------------------- ----------------------------------------- LMI, Inc. Common Stock Authorized: 10,000 shares at $.01 par value Issued and Outstanding: 10,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Mammoth Geothermal Common Stock Authorized: 1,000 shares at no par Company value Issued and Outstanding: 10 shares ---------------------------- ------------------------------------- ----------------------------------------- Mammoth Power Company Common Stock Authorized: 1,000 shares at no par value Issued and Outstanding: 10 shares ---------------------------- ------------------------------------- ----------------------------------------- Mt. Lassen Power Common Stock Authorized: 10 shares at $1.00 par value Issued and Outstanding: 10 shares ---------------------------- ------------------------------------- ----------------------------------------- Pacific Geothermal Common Stock Authorized: 10,000 shares at no par Company value Issued and Outstanding: 10 shares ---------------------------- ------------------------------------- ----------------------------------------- Pacific Oroville Common Stock Authorized: 10,000 shares at no par Power, Inc. value Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Pacific Wood Fuels Common Stock Authorized: 10,000 shares at no par Company value Issued and Outstanding: 10 shares ---------------------------- ------------------------------------- ----------------------------------------- Pacific Wood Services Common Stock Authorized: 1,000 shares at no par Company value Issued and Outstanding: 10 shares ---------------------------- ------------------------------------- ----------------------------------------- Three Mountain Common Stock Authorized: 100 shares at $1.00 Operations, Inc. par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Three Mountain Power, Equity Interest Authorized: 100 shares at $1.00 par LLC value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Burney Mountain Power Common Stock Authorized: 10,000 shares at no par value Issued and Outstanding: 10 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Common Stock Authorized: 1,000 shares at $1.00 Alexandria/Arlington, par value Inc. Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Bristol, Inc. Common Stock Authorized: 100 shares at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Fairfax, Inc. Common Stock Authorized: 100 shares at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Haverhill, Inc. Common Stock Authorized: 100 shares at $1.00 par value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Honolulu Equity Interests Covanta Projects of Hawaii, Inc., Resource Recovery General Partner - 50% Venture Covanta Oahu Waste Energy Recovery, Inc., General Partner - 50% ---------------------------- ------------------------------------- ----------------------------------------- Covanta Indianapolis, Common Stock Authorized: 100 shares at $1.00 par Inc. value Issued and Outstanding: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Marion, Inc. Common Stock Authorized: 10 shares at no par value Issued and Outstanding: 10 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Omega Lease, Common Stock Authorized: 1,000 shares at $1.00 Inc. par value Issued and Outstanding: 1,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Covanta Stanislaus, Common Stock Authorized: 100 shares at $1.00 par Inc. value Issued: 100 shares ---------------------------- ------------------------------------- ----------------------------------------- Haverhill Power, Inc. Common Stock Authorized: 300,000 shares at $.01 par value Issued: 10,000 shares ---------------------------- ------------------------------------- ----------------------------------------- Michigan Waste to Common Stock Authorized: 1,000 shares at $1.00 Energy, Inc. par value Issued: 1,000 shares ---------------------------- ------------------------------------- -----------------------------------------
The following is a brief outline of the voting rights of each class of the Guarantors' voting securities: The holders of the outstanding common shares of each of the Guarantors have the right to elect its Board of Directors and to vote on all other matters that may be acted on at any meeting of its shareholders, except for the holders of the outstanding common shares of Covanta Power Equity Corporation and DSS Environmental, Inc. The holders of the outstanding Class A common stock of Covanta Power Equity Corporation have all of the voting rights, including election of the Board of Directors, not reserved to the Class B common stock. The holders of the outstanding Class B common stock of Covanta Power Equity Corporation are entitled to elect one director and vote on amendments to the article of the certificate of incorporation that sets forth the purposes of the corporation. The holders of the outstanding common stock of DSS Environmental, Inc. do not have voting rights. The holders of the preferred stock of Covanta Marion Land Corporation have no voting rights except as required by law. The holders of the preferred stock have preference with respect to dividends and upon liquidation, dissolution or winding up of the company. The holders of the preferred stock of Covanta Projects, Inc. have preference upon liquidation, dissolution or winding up of the company and the same voting rights as the holders of the common stock. The holders of the preferred stock of DSS Environmental Inc. have voting rights, but the holders of the common stock do not. The holders of equity interests in Covanta Honolulu Resource Recovery Venture have the right to vote on all matters relating to the company's business. The holders of equity interests in Three Mountain Power, LLC have the right to vote on all matters relating to the company's business. The general partners of Heber Loan Partners each appoint one member to the Management Committee, and each member of the Management Committee has one vote on all matters involving management and direction of business and operations. The holders of equity interests in Covanta Operations of Union, LLC each appoint one member to the Board of Managers, and each member of the Board of Managers has one vote on all matters involving management and direction of business and operations. The general partners of Covanta Hennepin Energy Resource Co., Limited Partnership have the exclusive right to manage the business of the partnership. The powers and duties of the general partners may be exercised by any one of the general partners acting alone unless the partnership agreement specifically provides otherwise. No partner has the right to withdraw from the partnership without the consent of all of the general partners. INDENTURE SECURITIES 8. Analysis of indenture provisions. Secured Notes Indenture The following is a general description of certain provisions of the Secured Notes Indenture. This description is qualified in its entirety by reference to the form of Secured Notes Indenture filed as Exhibit T3C-1 hereto, including that "Company" means Covanta and that each Guarantor is a "Restricted Subsidiary." Capitalized terms used in this Item 8 and not defined elsewhere in this application have the meanings given to such terms in the Secured Notes Indenture. References to "Sections" in this analysis refer to sections of the Secured Notes Indenture, and references to the "Indenture" refer to the Secured Notes Indenture. (A) Events of Default; Withholding of Notice The Indenture defines "Event of Default" as: (a) The default for 30 days in the payment of interest due on the Secured Notes; (b) The default in the payment of principal or accreted value of, or premium (if any) on the Secured Notes; (c) The failure of the Company or any of its Restricted Subsidiaries to observe or perform its obligations under certain covenants in the Indenture relating to merger, consolidation, sale of assets or change of control (Sections 4.15 and 5.01); (d) The failure by the Company or any of its Restricted Subsidiaries for 60 days notice from the Trustee or holders of at least 25% in aggregate principal amount of the outstanding Secured Notes to observe or perform any other covenant, condition or agreement in the Indenture or the Security Documents; (e) The default under any mortgage, indenture, agreement or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness of the Company or any of its Restricted Subsidiaries, whether such Indebtedness now exists, or is created after the Issue Date, which default is caused by the failure to pay principal or liquidation preference at final maturity or results in the acceleration of such Indebtedness prior to maturity, or results in the requirement that the Company or any of its Restricted Subsidiaries collateralize any letter of credit and the Company and such Restricted Subsidiary fails to provide the required collateral, in each case where the principal amount of such Indebtedness or collateralization requirement aggregates at least $20,000,000; (f) The failure by the Company or any of its Restricted Subsidiaries to pay final judgments aggregating in excess of $10 million of the amounts which the Company's insurance carriers have agreed to pay, which judgments have not been waived, satisfied, bonded or discharged for a period of 60 days during which a stay of enforcement is not in effect; (g) Certain events of bankruptcy or insolvency relating to the Company or any Restricted Subsidiary of the Company (other than a Restricted Subsidiary that is in bankruptcy upon effectiveness of the Reorganization Plan). The Indenture provides that the Trustee will, within 90 days after the occurrence of a default that is continuing and known to the Trustee, give the holders of Notes notice of such default. Except in the case of default in the payment of principal of, premium (if any) or interest on any Secured Note, however, the Trustee may withhold notice if and so long as a committee of its Responsible Officers in good faith determines withholding the notices is in the interests of the Holders of the Secured Notes. If an Event of Default occurs and is continuing, the Trustee of holders of at least 25% in principal amount at Stated Maturity of the Secured Notes may declare the Secured Notes to be immediately due and payable. The amount due shall be the Accreted Value of the Secured Notes as of the date of acceleration. In the Event of Default as described in clause (e) above, such declaration of acceleration shall be annulled if the holders in respect of such Indebtedness have rescinded their declaration of acceleration within 30 days of the date of such declaration and such annulment would not conflict with the judgment or decree of a court of competent jurisdiction and all existing Events of Default, except nonpayment of principal or interest on the Secured Notes due and payable solely because of such acceleration have been cured or waived. The holders of a majority in aggregate principal amount at Stated Maturity of the outstanding Secured Notes may rescind an acceleration and its consequence by written notice to the Trustee if such rescission would not conflict with any judgment or decree and if all existing Events of Default (other than nonpayment of principal and interest as stated above) have been cured or waived. If an Event of Default occurs by willful action by the Company with the intention of avoiding payment of the premium that the Company would have to pay if it elected to redeem the Secured Notes pursuant to the Optional Redemption provisions in the Indenture (Section 3.07), then upon acceleration and equivalent premium shall also become due and payable. Defaults may be waived by the holders of a majority in aggregate principal amount at Stated Maturity of the outstanding Secured Notes, upon conditions provided in the Indenture, except that such holders may not waive an Event of Default in the payment of the principal or Accreted Value of or premium or interest on the Secured Notes, including an offer to purchase. However, such holders may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. (B) Execution and Authentication of the Secured Notes The aggregate principal amount of Secured Notes which may be authenticated and delivered under the Indenture is limited to $230,000,000 at Stated Maturity. The Secured Notes to be issued under the Indenture will be executed on behalf of the Company by its proper officers and delivered to the Trustee for authentication and delivery in accordance with the Company's Authentication Certificate and the Indenture. On the date of the Indenture, the Trustee will authenticate the Secured Notes to be issued in Global Form for $230,000,000 in aggregate principal amount at Stated Maturity. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate the Secured Notes. An authenticating agent may authenticate the Secured Notes whenever the Trustee may do so. There will be no proceeds (and therefore no application of such proceeds) from the issuance of the Secured Notes because the Notes will be issued as part of an exchange for claims pursuant to the Plan of Reorganization as described in Item 2 of this application. (C) Release or Substitution of Collateral The Trustee shall not direct the Collateral Agent to release Collateral subject to the lien of the Indenture and the Security Documents unless such release is in accordance with the provisions of the Indenture, the Security Documents and Section 314(d) of the TIA. The Company may file a request for an exemption from the requirements of Section 314(d) of the TIA for releases of collateral and the making of cash payments in the ordinary course of business, provided that the Company and the Guarantors continue to furnish to the Trustee all necessary certificates required under the Indenture. The Indenture permits the Company and its Restricted Subsidiaries to sell, lease transfer or otherwise dispose of any of its assets, provided that certain conditions are met (including the application of Net Proceeds in accordance with the Indenture). (D) Satisfaction and Discharge Under the Indenture The Indenture shall cease to be of further effect (except that certain obligations of the Company and the Guarantors regarding indemnification and compensation of the Trustee and certain obligations of the Trustee relating to the payment of excess monies held in Trust) when all outstanding Secured Notes that have been authenticated an issued have been delivered (other than destroyed, lost or stolen Secured Notes that have been replaced or paid) to the Trustee for cancellation and the Company has paid all sums payable by the Company under the Indenture. In addition, with regards to Notes that have not been delivered to the Trustee for cancellation that have become due and payable, the Company may terminate all of its obligations under the Indenture if: (a) The Company or any Guarantor has irrevocably deposited with the Trustee cash in U.S. dollars, non-callable Government Securities or a combination thereof, in amounts sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness of those Secured Notes for principal or Accreted Value, premium (if any) and accrued interest to the date of maturity or redemption; (b) No Event of Default has occurred and is continuing on the date of such deposit or will occur on account of such deposit, and such deposit will not result in a breach or violation of any other instrument to which the Company or any Guarantor is a party; (c) The Company or any Guarantor has paid all sums payable under the Indenture; (d) The Company has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Secured Notes at maturity or on the redemption date; (e) The Company has delivered an Officer's Certificate and Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied. The Company may effect a defeasance (i.e., the discharge of certain obligations of the Issuer under the Indenture, including the Indebtedness represented by the Secured Notes), or a covenant defeasance (i.e., the release of certain covenant obligations of the Issuer and each Guarantor under the Indenture) with respect to the defeased Secured Notes upon the satisfaction of certain conditions, including, (a) the irrevocable deposit by the Company with the Trustee in trust for the benefit of the holders, cash in U.S. dollars, non-callable Government Securities or a combination thereof, in such amount as shall be sufficient to pay the principal or Accreted Value of, and premium, if any, and interest on the outstanding Notes on the stated date for payment; (b) the delivery to the Trustee of certain prescribed Opinions of Counsel (including an opinion with respect to certain U.S. Federal income tax); (c) that no Default or Event of Default shall have occurred and be continuing on the date of such Deposit; (d) such defeasance shall not result in a breach or violation of, or constitute a default under any material agreement or instrument to which the Company or any of its Subsidiaries is a party or is bound; (e) the delivery to the Trustee of an Officer's Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, delaying or defrauding any other creditors of the Company; and (f) the delivery to the Trustee of an Officer's Certificate and an Opinion of Counsel stating that all conditions precedent provided for or related to the defeasance have been complied with. The Opinion of Counsel required by (f) above does not need to be delivered if all Secured Notes not therefore delivered to the Trustee for cancellation (i) have become due and payable or (ii) will become due and payable on their maturity date within one year under arrangements satisfactory to the Trustee for the giving of notice of assumption by the Trustee in the name and at the expense of the Company. (E) Evidence of Compliance with Conditions and Covenants So long as any of the Secured Notes are outstanding, the Indenture requires that the Company and the Guarantors (if the Guarantor is so required under the TIA) to deliver to the Trustee: (a) Within 105 days after the end of each fiscal year, an Officer's Certificate, that to the best of the signing Officer's knowledge the Company and Guarantors have kept, observed, performed and fulfilled each and every covenant contained in the Indenture and are not in default in the performance or observance of any of the terms, provisions and conditions of the Indenture (or, if a Default or an Event of Default has occurred, describing all such Defaults or Events of Default and what action is being proposed) and that to the best of his or her knowledge no event has occurred and is continuing by reason of which payments of the principal or Accreted Value of, or interest or premium, if any, on the Secured Notes are prohibited, or if such event has occurred, a description of the event and what action the Company or Guarantor is taking with respect thereto; (b) So long as not contrary to the then current recommendations of the American Institute of Certified Pubic Accountants, the year-end financial statements delivered pursuant to Section 4.03 of the Indenture shall be accompanied by a written statements of the Company's independent public accountants that in connection with their audit, nothing has come to their attention that has caused them to believe that, with respect to financial and accounting matters, the Company failed to comply with any provision of Articles 4 or 5 of the Indenture, or if any such noncompliance has come to their attention, specifying the nature and period of existence, it being understood that their audit was not directed primarily towards obtaining knowledge of such noncompliance and that they will not be held liable directly or indirectly to any Person for failure to obtain such knowledge; (c) Within five Business Days after the date on which any officer of the Company becomes aware of a Default or Event of Default, the Company shall deliver to the Trustee an Officer's Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take; (d) Upon any request or application by the Company to the Trustee to take any action under the Indenture, the Company is required to furnish to the Trustee (1) an Officer's Certificate and (2) an opinion of legal counsel, each to the effect that all conditions precedent and covenants, if any, provided for in the Indenture relating to the proposed actions have been satisfied; (e) The Company and the Guarantors are required to deliver all certificates and opinions under Section 314 of the TIA relating to collateral and releases thereof. Subordinated Notes Indenture The following is a general description of certain provisions of the Subordinated Notes Indenture. This description is qualified in its entirety by reference to the form of Subordinate Notes Indenture filed as exhibit T3C-2 hereto. Capitalized terms used in this Item 8 and not defined elsewhere in this application have the meanings given to such terms in the Indenture. References to "Sections" in this analysis refer to sections of the Secured Notes Indenture, and references to the "Indenture" refer to the Secured Notes Indenture. (A) Events of Default; Withholding of Notice The Indenture defines "Event of Default" as: (a) The default in the payment of principal on the Unsecured Notes, except if the Company is prohibited from making such payment under the provisions relating to defaults on Senior Indebtedness of the Company (Section 10.3) and for 5 Business Days after the relevant prohibition is terminated; (b) The default for 30 days in the payment of interest due on the Unsecured Notes; except if the Company is prohibited from making such payment under the provisions relating to defaults on Senior Indebtedness of the Company (Section 10.3) and for 5 Business Days after the relevant prohibition is terminated; (c) The failure by the Company for 60 days notice from the Trustee or holders of at least 25% in aggregate principal amount of the outstanding Subordinated Notes to observe or perform any other covenant, condition or agreement in the Indenture; (d) A default by the Company under any Indebtedness which results in the acceleration of such Indebtedness prior to its Stated Maturity in the aggregate of $20,000,000 or more; and (e) Certain events of bankruptcy or insolvency relating to the Company and any Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) as specified in the Indenture. The Indenture provides that the Company will deliver to the Trustee an Officer's Certificate describing any Default or Event of Default, the status and what action the Company proposes to take. The Indenture provides that the Trustee will, within 90 days after the occurrence of a default that is continuing and known to the Trustee, give the holders of Notes notice of such default. Except in the case of default in the payment of principal of, premium (if any) or interest on any Unsecured Note, however, the Trustee may withhold notice if and so long as a committee of its Trust Officers in good faith determines withholding the notices is in the interests of the holders of the Unsecured Notes. If an Event of Default occurs and is continuing, the Trustee of holders of at least 25% in principal amount of the Unsecured Notes may declare the Unsecured Notes to be immediately due and payable. In the Event of Default as described in clause (e) above, the unpaid principal of and accrued and unpaid interest on all the Notes will become immediately due and payable without any declaration or other act on the part of the Trustee or the holders. The holders of a majority in aggregate principal amount of the outstanding Notes may rescind an acceleration and its consequence by written notice to the Trustee if such rescission would not conflict with any judgment or decree, if all existing Events of Default (other than nonpayment of principal and interest as stated above) have been cured or waived, and if the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advancements. Defaults may be waived by the holders of a majority in aggregate principal amount of the outstanding Unsecured Notes, upon conditions provided in the Indenture, except Event of Default in the payment of the principal or interest on the Unsecured Notes. (B) Execution and Authentication of the Unsecured Notes The aggregate principal amount of Unsecured Notes which may be authenticated and delivered under the Indenture is limited up to $50,000,000. The Unsecured Secured Notes to be issued under the Indenture will be executed from time to time on behalf of the Company by its proper officers and delivered to the Trustee for authentication and delivery in accordance with the Company's Authentication Certificate and the Indenture. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate the Unsecured Notes. An authenticating agent may authenticate the Secured Notes whenever the Trustee may do so. There will be no proceeds (and therefore no application of such proceeds) from the issuance of the Unsecured Notes because the Notes will be issued as part of an exchange for claims pursuant to the Plan of Reorganization as described in Item 2 of this application. (C) Release or Substitution of Collateral The Unsecured Notes are unsecured. The Indenture therefore does not contain any provisions relating to the release and substitution of collateral. (D) Satisfaction and Discharge Under the Indenture The Indenture shall cease to be of further effect (except that certain obligations of the Company regarding indemnification and compensation of the Trustee, and surviving rights or registration or transfer or exchange of the Unsecured Notes expressly provided in the Indenture) when all outstanding Unsecured Notes that have been authenticated an issued have been delivered (other than destroyed, lost or stolen Unsecured Notes that have been replaced or paid) to the Trustee for cancellation and the Company has paid all sums payable by the Company under the Indenture. In addition, with regards to Unsecured Notes that have not been delivered to the Trustee for cancellation that have become due and payable, the Company may terminate all of its obligations under the Indenture if: (a) The Company has irrevocably deposited with the Trustee U.S. Legal Tender or U.S. Government Obligations sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness of those Unsecured Notes for principal and interest to the date of deposit, together with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment; (b) The Company has delivered to the Trustee an Officers' Certificate stating that all conditions under this Indenture relating to the satisfaction and discharge have been complied with; and (c) The Company has paid all sums payable under the Indenture and the Unsecured Notes. (E) Evidence of Compliance with Conditions and Covenants So long as any of the Unsecured Notes are outstanding, the Indenture requires that the Company to deliver to the Trustee: (a) Within 105 days after the end of each fiscal year the Company shall deliver an Officer's Certificate that complies with Section 314(a)(4) of the TIA, and states that in the course of the performance by the signers of their duties as Officers of the Company they would normally have knowledge of any Default of Event of Default that occurred during such period, and if they do, shall describe such Default or Event of Default, it status and what actions the Company proposes to take with respect thereto; (b) Upon becoming aware of any Default or Event of Default the Company shall deliver to the Trustee an Officer's certificate specifying such Default or Event of Default and what action the Company proposes to take with respect thereto; (c) Upon any request or application by the Company to the Trustee to take any action under the Indenture, the Company is required to furnish to the Trustee (1) an Officer's Certificate and (2) an opinion of legal counsel, each to the effect that all conditions precedent and covenants, if any, provided for in the Indenture relating to the proposed actions have been satisfied; and (d) The Company is required to deliver all certificates and opinions required under Section 314(a)(4) of the TIA. 9. Other obligors. There are no obligors under the indenture securities other than the Applicants. The Guarantors are obligors in respect of the Secured Notes, but not the Subordinated Notes. CONTENTS OF APPLICATION FOR QUALIFICATION This application for qualification comprises: (a) Pages numbered 1 to [?], consecutively. (b) The statement of eligibility and qualification of each trustee under the indentures to be qualified. (c) The following exhibits in addition to those filed as a part of the statement of eligibility and qualification of each trustee: Exhibit T3A-1. Restated Certificate of Incorporation for Covanta Energy Corporation as amended, previously filed as Exhibit 3(a) to the Company's Form 10-K for the fiscal year ended December 31, 1988 and incorporated herein by reference. Exhibit T3A-2. Certificate of Ownership and Merger, Merging Ogden-Covanta, Inc. into Ogden Corporation, dated March 7, 2001, previously filed as Exhibit 3.1(b) to the Company's Form 10-K for the fiscal year ended December 31, 2000 and incorporated herein by reference. Exhibit T3A-3. Certificate of Incorporation for AMOR 14 Corporation Exhibit T3A-4. Certificate of Incorporation for Covanta Acquisition, Inc. Exhibit T3A-5. Certificate of Incorporation for Covanta Bessemer, Inc. Exhibit T3A-6. Certificate of Incorporation for Covanta Cunningham Environmental Support, Inc. Exhibit T3A-7. Certificate of Incorporation for Covanta Energy Americas, Inc. Exhibit T3A-8. Certificate of Incorporation for Covanta Energy Construction, Inc. Exhibit T3A-9. Certificate of Incorporation for Covanta Energy Group, Inc. Exhibit T3A-10. Certificate of Incorporation for Covanta Energy International, Inc. Exhibit T3A-11. Certificate of Incorporation for Covanta Energy Resource Corp. Exhibit T3A-12. Certificate of Incorporation for Covanta Energy Services, Inc. Exhibit T3A-13. Certificate of Incorporation for Covanta Energy West, Inc. Exhibit T3A-14. Certificate of Incorporation for Covanta Engineering Services, Inc. Exhibit T3A-15. Certificate of Incorporation for Covanta Geothermal Operations Holdings, Inc. Exhibit T3A-16. Certificate of Incorporation for Covanta Geothermal Operations, Inc. Exhibit T3A-17. Certificate of Incorporation for Covanta Haverhill Properties, Inc. Exhibit T3A-18. Certificate of Incorporation for Covanta Heber Field Energy, Inc. Exhibit T3A-19. Certificate of Incorporation for Covanta Hennepin Energy Resource Co., L.P. Exhibit T3A-20. Certificate of Incorporation for Covanta Hillsborough, Inc. Exhibit T3A-21. Certificate of Incorporation for Covanta Huntington Resource Recovery One Corp. Exhibit T3A-22. Certificate of Incorporation for Covanta Huntington Resource Recovery Seven Corp. Exhibit T3A-23. Certificate of Incorporation for Covanta Huntsville, Inc. Exhibit T3A-24. Certificate of Incorporation for Covanta Hydro Energy, Inc. Exhibit T3A-25. Certificate of Incorporation for Covanta Hydro Operations West, Inc. Exhibit T3A-26. Certificate of Incorporation for Covanta Hydro Operations, Inc. Exhibit T3A-27. Certificate of Incorporation for Covanta Imperial Power Services, Inc. Exhibit T3A-28. Certificate of Incorporation for Covanta Kent, Inc. Exhibit T3A-29. Certificate of Incorporation for Covanta Lancaster, Inc. Exhibit T3A-30. Certificate of Incorporation for Covanta Lee, Inc. Exhibit T3A-31. Certificate of Incorporation for Covanta Long Island, Inc. Exhibit T3A-32. Certificate of Incorporation for Covanta Marion Land Corp. Exhibit T3A-33. Certificate of Incorporation for Covanta Mid-Conn., Inc. Exhibit T3A-34. Certificate of Incorporation for Covanta Montgomery, Inc. Exhibit T3A-35. Certificate of Incorporation for Covanta New Martinsville Hydroelectric Corporation Exhibit T3A-36. Certificate of Incorporation for Covanta New Martinsville Hydro-Operations Corporation Exhibit T3A-37. Certificate of Incorporation for Covanta Oahu Waste Energy Recovery, Inc. Exhibit T3A-38. Certificate of Incorporation for Covanta Onondaga Five Corporation Exhibit T3A-39. Certificate of Incorporation for Covanta Onondaga Four Corporation Exhibit T3A-40. Certificate of Incorporation for Covanta Onondaga Operations, Inc. Exhibit T3A-41. Certificate of Incorporation for Covanta Onondaga Three Corporation Exhibit T3A-42. Certificate of Incorporation for Covanta Onondaga Two Corporation Exhibit T3A-43. Certificate of Incorporation for Covanta Onondaga, Inc. Exhibit T3A-44. Certificate of Incorporation for Covanta Operations of Union LLC Exhibit T3A-45. Certificate of Incorporation for Covanta OPW Associates, Inc. Exhibit T3A-46. Certificate of Incorporation for Covanta OPWH, Inc. Exhibit T3A-47. Certificate of Incorporation for Covanta Pasco, Inc. Exhibit T3A-48. Certificate of Incorporation for Covanta Plant Services of New Jersey, Inc. Exhibit T3A-49. Certificate of Incorporation for Covanta Power Equity Corporation Exhibit T3A-50. Certificate of Incorporation for Covanta Power Pacific, Inc. Exhibit T3A-51. Certificate of Incorporation for Covanta Power Plant Operations Exhibit T3A-52. Certificate of Incorporation for Covanta Projects of Hawaii, Inc. Exhibit T3A-53. Certificate of Incorporation for Covanta Projects, Inc. Exhibit T3A-54. Certificate of Incorporation for Covanta RRS Holdings Inc. Exhibit T3A-55. Certificate of Incorporation for Covanta Secure Services, Inc. Exhibit T3A-56. Certificate of Incorporation for Covanta SIGC Energy, Inc. Exhibit T3A-57. Certificate of Incorporation for Covanta SIGC Energy II, Inc. Exhibit T3A-58. Certificate of Incorporation for Covanta SIGC Geothermal Operations, Inc. Exhibit T3A-59. Certificate of Incorporation for Covanta Systems, LLC Exhibit T3A-60. Certificate of Incorporation for Covanta Wallingford Associates, Inc. Exhibit T3A-61. Certificate of Incorporation for Covanta Waste to Energy , LLC Exhibit T3A-62. Certificate of Incorporation for Covanta Water Holdings, Inc. Exhibit T3A-63. Certificate of Incorporation for Covanta Water Systems Inc. Exhibit T3A-64. Certificate of Incorporation for Covanta Water Treatment Services Inc. Exhibit T3A-65. Certificate of Incorporation for DSS Environmental, Inc. Exhibit T3A-66. Certificate of Incorporation for ERC Energy II, Inc. Exhibit T3A-67. Certificate of Incorporation for ERC Energy, Inc. Exhibit T3A-68. Certificate of Incorporation for Heber Field Energy II, Inc. Exhibit T3A-69. Certificate of Incorporation for Heber Loan Partners Exhibit T3A-70. Certificate of Incorporation for LMI, Inc. Exhibit T3A-71. Certificate of Incorporation for Mammoth Geothermal Company Exhibit T3A-72. Certificate of Incorporation for Mammoth Power Company Exhibit T3A-73. Certificate of Incorporation for Mt. Lassen Power Exhibit T3A-74. Certificate of Incorporation for Pacific Geothermal Company Exhibit T3A-75. Certificate of Incorporation for Pacific Oroville Power, Inc. Exhibit T3A-76. Certificate of Incorporation for Pacific Wood Fuels Company Exhibit T3A-77. Certificate of Incorporation for Pacific Wood Services Company Exhibit T3A-78. Certificate of Incorporation for Three Mountain Operations, Inc. Exhibit T3A-79. Certificate of Incorporation for Three Mountain Power, LLC Exhibit T3A-80 Certificate of Incorporation for Burney Mountain Power Exhibit T3A-81. Certificate of Incorporation for Covanta Alexandria/Arlington, Inc. Exhibit T3A-82. Certificate of Incorporation for Covanta Bristol, Inc. Exhibit T3A-83. Certificate of Incorporation for Covanta Fairfax, Inc. Exhibit T3A-84. Certificate of Incorporation for Covanta Haverhill, Inc. Exhibit T3A-85. Certificate of Incorporation for Honolulu Resource Recovery Venture Exhibit T3A-86. Certificate of Incorporation for Indianapolis, Inc. Exhibit T3A-87. Certificate of Incorporation for Covanta Marion, Inc. Exhibit T3A-88. Certificate of Incorporation for Covanta Omega Lease, Inc. Exhibit T3A-89. Certificate of Incorporation for Covanta Stanislaus, Inc. Exhibit T3A-90. Certificate of Incorporation for Covanta Haverhill Power, LLC Exhibit T3A-91. Certificate of Incorporation for Michigan Waste Energy, Inc. Exhibit T3B-1. By-Laws, as amended, of Covanta Energy Corporation, previously filed as Exhibit 3.2 to the Company's Form 10-Q for the quarterly period ended March 31, 1998 and incorporated herein by reference. Exhibit T3B-2. Bylaws of AMOR 14 Corporation Exhibit T3B-3. Bylaws of Covanta Acquisition, Inc. Exhibit T3B-4. Bylaws of Covanta Bessemer, Inc. Exhibit T3B-5. Bylaws of Covanta Cunningham Environmental Support, Inc. Exhibit T3B-6. Bylaws of Covanta Energy Americas, Inc. Exhibit T3B-7. Bylaws of Covanta Energy Construction, Inc. Exhibit T3B-8. Bylaws of Covanta Energy Group, Inc. Exhibit T3B-9. Bylaws of Covanta Energy International, Inc. Exhibit T3B-10. Bylaws of Covanta Energy Resource Corp. Exhibit T3B-11. Bylaws of Covanta Energy Services, Inc. Exhibit T3B-12. Bylaws of Covanta Energy West, Inc. Exhibit T3B-13. Bylaws of Covanta Engineering Services, Inc. Exhibit T3B-14. Bylaws of Covanta Geothermal Operations Holdings, Inc. Exhibit T3B-15. Bylaws of Covanta Geothermal Operations, Inc. Exhibit T3B-16. Bylaws of Covanta Haverhill Properties, Inc. Exhibit T3B-17. Bylaws of Covanta Heber Field Energy, Inc. Exhibit T3B-18. Bylaws of Covanta Hennepin Energy Resource Co., Limited Partnership Exhibit T3B-19. Bylaws of Covanta Hillsborough, Inc. Exhibit T3B-20. Bylaws of Covanta Huntington Resource Recovery One Corp. Exhibit T3B-21. Bylaws of Covanta Huntington Resource Recovery Seven Corp. Exhibit T3B-22. Bylaws of Covanta Huntsville, Inc. Exhibit T3B-23. Bylaws of Covanta Hydro Energy, Inc. Exhibit T3B-24. Bylaws of Covanta Hydro Operations, Inc. Exhibit T3B-25. Bylaws of Covanta Hydro Operations West, Inc. Exhibit T3B-26. Bylaws of Covanta Imperial Power Services, Inc. Exhibit T3B-27. Bylaws of Covanta Kent, Inc. Exhibit T3B-28. Bylaws of Covanta Lancaster, Inc. Exhibit T3B-29. Bylaws of Covanta Lee, Inc. Exhibit T3B-30. Bylaws of Covanta Long Island, Inc. Exhibit T3B-31. Bylaws of Covanta Marion Land Corp. Exhibit T3B-32. Bylaws of Covanta Mid-Conn, Inc. Exhibit T3B-33. Bylaws of Covanta Montgomery, Inc. Exhibit T3B-34. Bylaws of Covanta New Martinsville Hydroelectric Corporation Exhibit T3B-35. Bylaws of Covanta New Martinsville Hydro-Operations Corporation Exhibit T3B-36. Bylaws of Covanta Oahu Waste Energy Recovery Inc. Exhibit T3B-37. Bylaws of Covanta Onondaga Five Corp. Exhibit T3B-38. Bylaws of Covanta Onondaga Four Corp. Exhibit T3B-39. Bylaws of Covanta Onondaga Operations, Inc. Exhibit T3B-40. Bylaws of Covanta Onondaga Three Corp. Exhibit T3B-41. Bylaws of Covanta Onondaga Two Corp. Exhibit T3B-42. Bylaws of Covanta Onondaga, Inc. Exhibit T3B-43. Bylaws of Covanta Operations of Union, LLC Exhibit T3B-44. Bylaws of Covanta OPW Associates, Inc. Exhibit T3B-45. Bylaws of Covanta OPWH, Inc. Exhibit T3B-46. Bylaws of Covanta Pasco, Inc. Exhibit T3B-47. Bylaws of Covanta Plant Services of New Jersey, Inc. Exhibit T3B-48. Bylaws of Covanta Power Equity Corporation Exhibit T3B-49. Bylaws of Covanta Power Pacific, Inc. Exhibit T3B-50. Bylaws of Covanta Power Plant Operations Exhibit T3B-51. Bylaws of Covanta Projects of Hawaii, Inc. Exhibit T3B-52. Bylaws of Covanta Projects, Inc. Exhibit T3B-53. Bylaws of Covanta RRS Holdings Inc. Exhibit T3B-54. Bylaws of Covanta Secure Services, Inc. Exhibit T3B-55. Bylaws of Covanta SIGC Energy, Inc. Exhibit T3B-56. Bylaws of Covanta SIGC Energy II, Inc. Exhibit T3B-57. Bylaws of Covanta SICG Geothermal Operations, Inc. Exhibit T3B-58. Bylaws of Covanta Systems, Inc. Exhibit T3B-59. Bylaws of Covanta Wallingford Associates, Inc. Exhibit T3B-60. Bylaws of Covanta Waste to Energy, Inc. Exhibit T3B-61. Bylaws of Covanta Water Holdings, Inc. Exhibit T3B-62. Bylaws of Covanta Water Systems, Inc. Exhibit T3B-63. Bylaws of Covanta Water Treatment Services, Inc. Exhibit T3B-64. Bylaws of DSS Environmental, Inc. Exhibit T3B-65. Bylaws of ERC Energy II, Inc. Exhibit T3B-66. Bylaws of ERC Energy, Inc. Exhibit T3B-67. Bylaws of Heber Field Energy II, Inc. Exhibit T3B-68. Bylaws of Heber Loan Partners Exhibit T3B-69. Bylaws of LMI, Inc. Exhibit T3B-70. Bylaws of Mammoth Geothermal Company Exhibit T3B-71. Bylaws of Mammoth Power Company Exhibit T3B-72. Bylaws of Mt. Lassen Power Exhibit T3B-73. Bylaws of Pacific Geothermal Company Exhibit T3B-74. Bylaws of Pacific Oroville Power, Inc. Exhibit T3B-75. Bylaws of Pacific Wood Fuels Company Exhibit T3B-76. Bylaws of Pacific Wood Services Company Exhibit T3B-77. Bylaws of Three Mountain Operations, Inc. Exhibit T3B-78. Bylaws of Three Mountain Power, LLC Exhibit T3B-79 Bylaws of Burney Mountain Power Exhibit T3B-80. Bylaws of Covanta Alexandria/Arlington, Inc. Exhibit T3B-81. Bylaws of Covanta Bristol, Inc. Exhibit T3B-82. Bylaws of Covanta Fairfax, Inc. Exhibit T3B-83. Bylaws of Covanta Haverhill, Inc. Exhibit T3B-84. Bylaws of Covanta Honolulu Resource Recovery Venture Exhibit T3B-85. Bylaws of Covanta Indianapolis, Inc. Exhibit T3B-86. Bylaws of Covanta Marion, Inc. Exhibit T3B-87. Bylaws of Covanta Omega Lease, Inc. Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. Exhibit T3B-89. Bylaws of Covanta Haverhill Power, LLC Exhibit T3B-90. Bylaws of Michigan Waste Energy, Inc. Exhibit T3C-1. Form of Indenture for 8.25% Senior Secured Notes due 2011 between Covanta, the Guarantors party thereto and the Trustee. Exhibit T3C-2. Form of Indenture for 7.5% Unsecured Subordinated Notes due 2012 between Covanta and the Trustee. Exhibit T3D. Not applicable. Exhibit T3E-1. Debtors' Second Joint Reorganization Plan under Chapter 11 of the Bankruptcy Code previously filed as Exhibit T3E-1 to the Company's T-3/A (Amendment No. 3) filed with the Commission on January 26, 2004 and incorporated herein by reference. Exhibit T3E-2. Debtors' Second Joint Plan of Liquidation under Chapter 11 of the Bankruptcy Code previously filed as Exhibit T3E-2 to the Company's T-3/A (Amendment No. 3) filed with the Commission on January 26, 2004 and incorporated herein by reference. Exhibit T3E-3. Second Disclosure Statement with Respect to Reorganizing Debtors' Second Joint Plan of Reorganization and Liquidating Debtors' Second Joint Plan of Liquidation Under Chapter 11 of the Bankruptcy Code previously filed as Exhibit T3E-3 to the Company's T-3/A (Amendment No. 3) filed with the Commission on January 26, 2004 and incorporated herein by reference. Exhibit T3F-1. Cross reference sheet showing the location in the Secured Notes Indenture of the provisions inserted therein pursuant to Section 310 through 318(a), inclusive, of the Trust Indenture Act of 1939. Exhibit T3F-2. Cross reference sheet showing the location in the Subordinated Notes Indenture of the provisions inserted therein pursuant to Section 310 through 318(a), inclusive, of the Trust Indenture Act of 1939. Exhibit T3-G. Statement of eligibility and qualification of the Trustee on Form T-1. - ------------------------------------------------------------------------------ SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, each of the Applicants, Covanta Energy Corporation, a corporation organized and existing under the laws of Delaware; AMOR 14 Corporation, a corporation organized and existing under the laws of Delaware; Covanta Acquisition, Inc., a corporation organized and existing under the laws of Delaware; Covanta Bessemer, Inc., a corporation organized and existing under the laws of Delaware; Covanta Cunningham Environmental Support, Inc., a corporation organized and existing under the laws of Delaware; Covanta Energy Americas, Inc., a corporation organized and existing under the laws of Delaware; Covanta Energy Construction, Inc., a corporation organized and existing under the laws of Delaware; Covanta Energy Group, Inc., a corporation organized and existing under the laws of Delaware; Covanta Energy International, Inc., a corporation organized and existing under the laws of Delaware; Covanta Energy Resource Corp., a corporation organized and existing under the laws of Delaware; Covanta Energy Services, Inc., a corporation organized and existing under the laws of Delaware; Covanta Energy West, Inc., a corporation organized and existing under the laws of Delaware; Covanta Engineering Services, Inc., a corporation organized and existing under the laws of New Jersey; Covanta Geothermal Operations Holdings, Inc., a corporation organized and existing under the laws of Delaware; Covanta Geothermal Operations, Inc., a corporation organized and existing under the laws of Delaware; Covanta Haverhill Properties, Inc., a corporation organized and existing under the laws of Massachusetts; Covanta Heber Field Energy, Inc., a corporation organized and existing under the laws of Delaware; Covanta Hennepin Energy Resource Co., Limited Partnership, a limited partnership organized and existing under the laws of Delaware; Covanta Hillsborough, Inc., a corporation organized and existing under the laws of Florida; Covanta Huntington Resource Recovery One Corp., a corporation organized and existing under the laws of Delaware; Covanta Huntington Resource Recovery Seven Corp., a corporation organized and existing under the laws of Delaware; Covanta Huntsville, Inc., a corporation organized and existing under the laws of Alabama; Covanta Hydro Energy, Inc., a corporation organized and existing under the laws of Delaware; Covanta Hydro Operations, Inc., a corporation organized and existing under the laws of Tennessee; Covanta Hydro Operations West, Inc., a corporation organized and existing under the laws of Delaware; Covanta Imperial Power Services, Inc., a corporation organized and existing under the laws of the state of California; Covanta Kent, Inc., a corporation organized and existing under the laws of Michigan; Covanta Lancaster, Inc., a corporation organized and existing under the laws of Pennsylvania; Covanta Lee, Inc., a corporation organized and existing under the laws of Florida; Covanta Long Island, Inc., a corporation organized and existing under the laws of Delaware; Covanta Marion Land Corp., a corporation organized and existing under the laws of Oregon; Covanta Mid-Conn., Inc., a corporation organized and existing under the laws of Connecticut; Covanta Montgomery, Inc., a corporation organized and existing under the laws of Maryland; Covanta New Martinsville Hydroelectric Corporation, a corporation organized and existing under the laws of Delaware; Covanta New Martinsville Hydro-Operations Corporation, a corporation organized and existing under the laws of West Virginia; Covanta Oahu Waste Energy Recovery, Inc., a corporation organized and existing under the laws of California; Covanta Onondaga, Inc., a corporation organized and existing under the laws of New York; Covanta Onondaga Five Corporation, a corporation organized and existing under the laws of Delaware; Covanta Onondaga Four Corporation, a corporation organized and existing under the laws of Delaware; Covanta Onondaga Operations, Inc., a corporation organized and existing under the laws of Delaware; Covanta Onondaga Three Corporation, a corporation organized and existing under the laws of Delaware; Covanta Onondaga Two Corporation, a corporation organized and existing under the laws of Delaware; Covanta Operations of Union LLC, a corporation organized and existing under the laws of New Jersey; Covanta OPW Associates, Inc., a corporation organized and existing under the laws of Connecticut; Covanta OPWH, Inc. a corporation organized and existing under the laws of Delaware; Covanta Pasco, Inc., a corporation organized and existing under the laws of Florida; Covanta Plant Services of New Jersey, Inc., a corporation organized and existing under the laws of New Jersey; Covanta Power Equity Corporation, a corporation organized and existing under the laws of Delaware; Covanta Power Pacific, Inc., a corporation organized and existing under the laws of California; Covanta Power Plant Operations, a corporation organized and existing under the laws of California; Covanta Projects, Inc., a corporation organized and existing under the laws of Delaware; Covanta Projects of Hawaii, Inc., a corporation organized and existing under the laws of Hawaii; Covanta RRS Holdings Inc., a corporation organized and existing under the laws of Delaware; Covanta Secure Services, Inc., a corporation organized and existing under the laws of Delaware; Covanta SIGC Energy, Inc., a corporation organized and existing under the laws of Delaware; Covanta SIGC Energy II, Inc., a corporation organized and existing under the laws of California; Covanta SIGC Geothermal Operations, Inc., a corporation organized and existing under the laws of California; Covanta Systems, Inc., a corporation organized and existing under the laws of Delaware; Covanta Wallingford Associates, Inc., a corporation organized and existing under the laws of Connecticut; Covanta Waste to Energy, Inc., a corporation organized and existing under the laws of Delaware; Covanta Water Holdings, Inc., a corporation organized and existing under the laws of Delaware; Covanta Water Systems Inc., a corporation organized and existing under the laws of Delaware; Covanta Water Treatment Services Inc., a corporation organized and existing under the laws of Delaware; DSS Environmental, Inc., a corporation organized and existing under the laws of New York; ERC Energy II, Inc., a corporation organized and existing under the laws of Delaware; ERC Energy, Inc., a corporation organized and existing under the laws of Delaware; Heber Field Energy II, Inc., a corporation organized and existing under the laws of Delaware; Heber Loan Partners, a partnership organized and existing under the laws of California; LMI, Inc., a corporation organized and existing under the laws of Massachusetts; Mammoth Geothermal Company, a corporation organized and existing under the laws of California; Mammoth Power Company, a corporation organized and existing under the laws of California; Mt. Lassen Power, a corporation organized and existing under the laws of California; Pacific Geothermal Company, a corporation organized and existing under the laws of California; Pacific Oroville Power, Inc., a corporation organized and existing under the laws of California; Pacific Wood Fuels Company, a corporation organized and existing under the laws of California; Pacific Wood Services Company, a corporation organized and existing under the laws of California; Three Mountain Operations, Inc., a corporation organized and existing under the laws of Delaware; Three Mountain Power, LLC, a LLC organized and existing under the laws of Delaware; Burney Mountain Power, a corporation organized and existing under the laws of California; Covanta Alexandria/Arlington, Inc., a corporation organized and existing under the laws of Virginia; Covanta Bristol, Inc., a corporation organized and existing under the laws of Connecticut; Covanta Fairfax, Inc., a corporation organized and existing under the laws of Virginia; Covanta Haverhill, Inc. a corporation organized and existing under the laws of Massachusetts; Covanta Honolulu Resource Recovery Venture, a partnership organized and existing under the laws of Hawaii; Covanta Indianapolis, Inc., a corporation organized and existing under the laws of Indiana; Covanta Marion, Inc., a corporation organized and existing under the laws of Oregon; Covanta Omega Lease, Inc., a corporation organized and existing under the laws of Delaware; Covanta Stanislaus, Inc., a corporation organized and existing under the laws of California; Haverhill Power, Inc., a corporation organized and existing under the laws of Massachusetts; and Michigan Waste Energy, Inc., a corporation organized and existing under the laws of Delaware have duly caused this Amendment No. 4 to the Application on Form T-3 to be signed on its behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the city of Fairfield, and State of New Jersey, on the [?] day of March 2004. COVANTA ENERGY CORPORATION (SEAL) By: /s/ Jeffrey R. Horowitz --------------------------- Name: Jeffrey R. Horowitz Title: Senior Vice President and General Counsel Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant AMOR 14 CORPORATION (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ACQUISITION, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA BESSEMER, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA CUNNINGHAM ENVIRONMENTAL SUPPORT, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ENERGY AMERICAS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ENERGY CONSTRUCTION, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ENERGY GROUP, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ENERGY INTERNATIONAL, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ENERGY RESOURCE CORP. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ENERGY SERVICES, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ENERGY WEST, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ENGINEERING SERVICES, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA GEOTHERMAL OPERATIONS HOLDINGS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA GEOTHERMAL OPERATIONS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HAVERHILL PROPERTIES, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HEBER FIELD ENERGY, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HENNEPIN ENERGY RESOURCE CO., LIMITED PARTNERSHIP (SEAL) By: COVANTA ENERGY RESOURCE CORP., General Partner By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President of Covanta Energy Resource Corp. Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HILLSBOROUGH, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HUNTINGTON RESOURCE RECOVERY ONE CORP. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HUNTINGTON RESOURCE RECOVERY SEVEN CORP. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HUNTSVILLE, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HYDRO ENERGY, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HYDRO OPERATIONS WEST, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HYDRO OPERATIONS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA IMPERIAL POWER SERVICES, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA KENT, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA LANCASTER, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA LEE, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA LONG ISLAND, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA MARION LAND CORP. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA MID-CONN., INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA MONTGOMERY, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA NEW MARTINSVILLE HYDROELECTRIC CORPORATION (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA NEW MARTINSVILLE HYDRO-OPERATIONS CORPORATION (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA OAHU WASTE ENERGY RECOVERY, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ONONDAGA FIVE CORPORATION (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ONONDAGA FOUR CORPORATION (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ONONDAGA OPERATIONS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ONONDAGA THREE CORPORATION (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ONONDAGA TWO CORPORATION (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ONONDAGA, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA OPERATIONS OF UNION LLC (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA OPW ASSOCIATES, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA OPWH, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA PASCO, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA PLANT SERVICES OF NEW JERSEY, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA POWER EQUITY CORPORATION (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA POWER PACIFIC, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA POWER PLANT OPERATIONS (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA PROJECTS OF HAWAII, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA PROJECTS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA RRS HOLDINGS INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA SECURE SERVICES, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA SIGC ENERGY, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA SIGC ENERGY II, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA SIGC GEOTHERMAL OPERATIONS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA SYSTEMS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA WALLINGFORD ASSOCIATES, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA WASTE TO ENERGY, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA WATER HOLDINGS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA WATER SYSTEMS INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA WATER TREATMENT SERVICES INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant DSS ENVIRONMENTAL, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant ERC ENERGY II, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant ERC ENERGY, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant HEBER FIELD ENERGY II, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant HEBER LOAN PARTNERS (SEAL) By: ERC Energy Inc. and ERC Energy I I, Inc., General Partners By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President of ERC Energy Inc. and ERC Energy II, Inc. Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant LMI, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant MAMMOTH GEOTHERMAL COMPANY (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant MAMMOTH POWER COMPANY (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant MT. LASSEN POWER (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant PACIFIC GEOTHERMAL COMPANY (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant PACIFIC OROVILLE POWER, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant PACIFIC WOOD FUELS COMPANY (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant PACIFIC WOOD SERVICES COMPANY (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant THREE MOUNTAIN OPERATIONS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant THREE MOUNTAIN POWER, LLC (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant BURNEY MOUNTAIN POWER (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA ALEXANDRIA/ARLINGTON, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA BRISTOL, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA FAIRFAX, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HAVERHILL, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA HONOLULU RESOURCE RECOVERY VENTURE (SEAL) By: Covanta Projects of Hawaii, Inc. and Covanta Oahu Waste Energy Recovery, Inc., General Partners By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President of Covanta Projects of Hawaii, Inc. and Covanta Oahu Waste Energy Recovery, Inc. Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA INDIANAPOLIS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA MARION, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA OMEGA LEASE, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant COVANTA STANISLAUS, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant HAVERHILL POWER, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant MICHIGAN WASTE ENERGY, INC. (SEAL) By: /s/ Anthony J. Orlando --------------------------- Name: Anthony J. Orlando Title: President Attest: /s/ Maria Stephenson --------------------- Maria Stephenson Executive Assistant EX-99.T3A3 3 exhibit_t3a-3.txt Exhibit T3A-3 CERTIFICATE OF INCORPORATION OF ALTFLN CORPORATION 1. The name of the corporation is: ALTFIN CORPORATION 2. The address of its registered office in the State of Delaware is 100 West Tenth Street in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations cay be organized under the General Corporation Law of Delaware. 4. The total number of shares of common stock which the corporation shall have authority to issue is Fifty Thousand (50,000) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to Fifty Thousand Dollars ($50.000.00). 5. The board of directors is authorized to make, alter or repeat the by-laws of the corporation. Election of directors need not be by ballot. 6. The name and mailing address of the incorporator is: L.M. Custis 100 West Tenth Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 31st day of March, 1982. /s/ L.M. Custis -------------------------- L.M. Custis 1 Exhibit T3A-3 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION Altfin Corporation a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That the Board of Directors of said corporation, by the unanimous written consent of its members, filed with the minutes of the board, adopted a resolution proposing and declaring advisable the following amendment to the Certificate of Incorporation of said corporation: RESOLVED, that the Certificate of Incorporation of Altfin Corporation be amended by changing the First Article thereof so that, as amended, said Article shall be and read as follows: "The name of the Corporation is "Second Dravo Geothermal, Inc." SECOND: That in lieu of a meeting and vote of stockholders, the stockholders have given unanimous written consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware. THIRD: That the aforesaid amendment was duly adopted In accordance with the applicable provisions of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said Corporation has caused this certificate to be signed by William C. Richards, Vice President, and attested by Glenn S. Burns, its Secretary, this 2nd day of August, 1985. ALTFIN CORPORATION By:____________________________ Vice President ATTEST: __________________________ Secretary 2 Exhibit T3A-3 RESTATED CERTIFICATE OF INCORPORATION OF SECOND DRAVO GEOTHERMAL, INC. Second Dravo Geothermal, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware, does hereby certify; 1. The original Certificate of Incorporation was filed with the Secretary of State on March 31, 1982, and the name under which it was originally incorporated is Altfin Corporation. 2. A resolution setting forth the Restated Certificate of Incorporation, attached hereto as Exhibit A, and proposing the amendments to be made thereby, and declaring the advisability of said amendments, was duly adopted by the corporation's Board of Directors by the unanimous written consent of its members, filed with the minutes of the Board, pursuant to the applicable provisions of Section 242 and Section 245 of the General Corporation Law of the State of Delaware. In lieu of a meeting of the stockholders, unanimous written consent has been given for the adoption of said Restated Certificate of Incorporation and the amendments to be made thereby pursuant to the applicable provisions of Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, the undersigned has signed his name and affirms, under penalties of perjury, that the statements herein are true and that this instrument is the free and voluntary act and deed of Second Dravo Geothermal, Inc. as of this ______ day of May, 1989. SECOND DRAVO GEOTHERMAL, INC. By /s/ Lucien Y. Broniki --------------------- Lucien Y. Bronicki, President ATTEST: /s/ Yehudit Broniki - ------------------------------------ Yehudit Bronicki, Secretary 3 Exhibit T3A-3 EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION ARTICLE 1. NAME The name of this corporation is AMOR 14 Corporation. ARTICLE 2. REGISTERED OFFICE AND AGENT The address of the initial registered office of this corporation is Corporation Trust Center, 1209 Orange Street, Wilmington, County of New Castle, State of Delaware 19801, and the name of its initial registered agent at such address is The Corporation Trust Company. ARTICLE 3. PURPOSES The purpose of this corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. ARTICLE 4. SHARES This corporation shall have authority to issue 10,000 shares of common stock, and each share shall have a par value of $1.00. ARTICLE 5. BY-LAWS The Board of Directors shall have the power to adopt, amend or repeal the By-Laws for this corporation, subject to the power of the stockholders to amend or repeal such By-Laws. The stockholders shall also have the power to adopt, amend or repeal the By-Laws for this corporation. ARTICLE 6. ELECTION OF DIRECTORS Written ballots are not required in the election of Directors. ARTICLE 7. PROVISIONS FOR A COMPROMISE OR ARRANGEMENT Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or 4 Exhibit T3A-3 receivers appointed for this corporation under the provisions of section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation. ARTICLE 8. PREEMPTIVE RIGHTS No preemptive rights shall exist with respect to shares of stock or securities convertible into shares of stock of this corporation. ARTICLE 9. CUMULATIVE VOTING The right to cumulate votes in the election of Directors shall not exist with respect to shares of stock of this corporation. ARTICLE 10. AMENDMENTS TO CERTIFICATE OF INCORPORATION This corporation reserves the right to amend or repeal any of the provisions contained in this Certificate of Incorporation in any manner now or hereafter permitted by law, and the rights of the stockholders of this corporation are granted subject to this reservation. ARTICLE 11. LIMITATION OF DIRECTOR LIABILITY To the full extent that the Delaware General Corporation Law, as it exists on the date hereof or may hereafter be amended, permits the limitation or elimination of the liability of directors, a director of this corporation shall not be liable to this corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Any amendment to or repeal of this Article 11 shall not adversely affect any right or protection of a director of this corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. 5 Exhibit T3A-3 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF AMOR 14 CORPORATION AMOR 14 CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of said corporation duly adopted resolutions setting forth a proposed amendment of the certificate of Incorporation of said corporation, declaring said amendment to be advisable and submitting said amendment to the shareholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows: RESOLVED that the Certificate of Incorporation of this corporation, Amor 14 Corporation, a Delaware corporation, be amended to add Article 14 to read in full as follows: 14. The affirmative vote of the holders of all the issued and outstanding shares of common stock entitled to vote shall be necessary to take any of the following corporate actions with respect to this Corporation or SIGC: "(i) any merger, consolidation or sale of all or substantially all the assets of this corporation or SIGC; "(ii) the filing of a voluntary petition in bankruptcy or the commencement of a voluntary case by this Corporation or by this corporation in its capacity as a general partner of SIGC on behalf of SIGC under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent to the entry of an order for relief in an involuntary case under any such law, or the application by this Corporation or by this Corporation in its capacity as a general partner of SIGC on behalf of SIGC for or consent to the appointment of a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of this Corporation, SIGC or any substantial part of their respective properties, or the taking of any action in contemplation of any of the foregoing or to liquidate, dissolve or wind up this Corporation or SIGC; and "(iii) any amendment to this Article of the Certificate of Incorporation." 6 Exhibit T3A-3 SECOND: That thereafter, pursuant to resolution of its Board of Directors, the amendment was submitted to the shareholders or said corporation, and in accordance with Section 228 of the General Corporation Law of the State of Delaware, the amendment was approved by the necessary number of shares as required by statute. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That written notice was provided to those shareholders not consenting in writing, pursuant to the provisions of Section 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said AMOR 14 CORPORATION has caused this certificate to be signed by James W. Porter, its President and Theodore C. Cooke, its Secretary, this 18th day of November, 1992. AMOR 14 CORPORATION By: /s/ James W. Porter ---------------------- James W. Porter President Attest: /s/ Theodore C. Cooke ------------------------- Theodore C. Cooke Secretary 7 Exhibit T3A-3 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND REGISTERED AGENT OF AMOR 14 CORPORATION The Board of Directors of: AMOR 14 CORPORATION a Corporation of the State of Delaware, on this 7th day of December A.D. 1993 do hereby resolve and order that the location of the Registered Office of this Corporation within this State be, and the same hereby is: 1013 Centre Road, in the City of Wilmington, in. the County of New Castle, Delaware, 19805. The name of the Registered Agent therein and in charge thereof upon whom process against the corporation may be served, is: CORPORATION SERVICE COMPANY. AMOR 14 CORPORATION a Corporation of the State of Delaware, does hereby certify that the foregoing is a true copy of a resolution adopted by the Board of Directors at a meeting held as herein stated. IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by its President and Secretary, this 3rd day of March A.D. 1994. BY: /s/ James W. Porter, Jr. ------------------------------- President James W. Porter, Jr. ATTESTED BY: /s/ Theodore C. Cooke ------------------------------- Secretary Theodore C. Cooke 8 Exhibit T3A-3 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND REGISTERED AGENT It is hereby certifed that: 1. The name of the corporation (hereinafter called the "corporation") is AMOR 14 Corporation. 2. The registered office of the corporation within the Stale of Delaware is hereby changed to 32 Loockerman Square. Suite L-100, City of Dover, 19904, County of Kent. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of tic corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on January 9, 1995. /s/ Sharon G. Province ------------------------------------ Sharon G. Province, Secretary 9 Exhibit T3A-3 STATE OF DELAWARE CERTIFICATE FOR RENEWAL AND REVIVAL OP CHARTER This corporation organized under the laws of Delaware, the charter of which was voided for non-payment of taxes, now desires to procure a restoration, removal and revival of its charter, and hereby certifies as follows: 1. The name of this corporation is AMOR 14 CORPORATION 2. Its registered office in the State of Delaware is located at 2711 Centerville Rd., Suite 400, City of Wilmington, Delaware, 19808, County of New Castle, the name and address of its registered agent is Corporation Service Company, 2711 Centerville Rd. Suite 400, Wilmington, DE 19808. 3. The date of filing of the original Certificates of Incorporation in Delaware was March 31, 1982. 4. The date when restoration, renewal, and revival of the charter of this company is to commence is the 28th day of February 2003, same being prior to the date of the expiration of the charter. This renewal and revival of the charter of this corporation is to be perpetual. 5. This corporation was duly organized and carried on the business authorized by its charter until the 1st day of March, A.D. 2003, at which time its charter became inoperative and void for non-payment of taxes and this certificate for renewal and revival is filed by authority of the duly elected directors of the corporation in accordance with the laws of the State of Delaware. IN TESTIMONY WHEREOF, and in compliance with the provisions of Section 312 of the General Corporation Law of the State of Delaware, as amended, providing for the renewal, extension and restoration of charters, Timothy J. Simpson the last and acting authorized officer hereunder set his/her hand to this certificate this 24th day of November, A.D. 2003. By: /s/ Sheila T. Bilder ------------------------ Authorized Officer Name: Sheila T. Bilder ----------------------- Print or Type Title: Assistant Secretary ---------------------- 10 Exhibit T3A-3 RESTATED CERTIFICATE OF INCORPORATION OF AMOR 14 CORPORATION It is hereby certified that: 1. (a) The present name of the corporation (hereinafter called the "corporation") is Amor 14 Corporation. (b) The name under which the corporation was originally incorporated is Altfin Corporation, and the date of filing the original certificate of incorporation of the corporation with the Secretary of State of the State of Delaware is March 31, 1982 and was thereafter amended on November 25, 1985 and restated on May 15, 1989 and thereafter amended on November 23, 1992. 2. The certificate of incorporation of the corporation is hereby amended by striking out Articles 1 through 11 and 14 thereof and by substituting in lieu thereof new Articles 1 through 12 which are set forth in the attached Restated Certificate of Incorporation hereinafter provided for. 3. The provisions of the certificate of incorporation of the corporation as heretofore amended and/or supplemented, and as herein amended, are hereby restated and integrated into the single instrument which is hereinafter set forth, and which is entitled Restated Certificate of Incorporation of Amor 14 Corporation without any further amendments other than the amendments herein certified and without any discrepancy between the provisions of the certificate of incorporation as heretofore amended and supplemented and the provisions of the said single instrument hereinafter set forth. 4. The amendments and the restatement of the certificate of incorporation herein certified have been duly adopted by the stockholders in accordance with the provisions of Sections 228, 242, and 245 of the General Corporation Law of the State of Delaware, 5. The effective time of the restated certificate of incorporation and of the amendment(s] herein certified shall be December 15, 2003. 6. The certificate of incorporation of the corporation, as amended and restated herein, shall at the effective time of this restated certificate of Incorporation, read as follows: 11 Exhibit T3A-3 "Restated Certificate of Incorporation of Amor 14 Corporation" Signed on December 17, 2003 Timothy J. Simpson ----------------------------------------- Timothy J. Simpson, Assistant Secretary 12 Exhibit T3A-3 EXHIBIT A RESTATED CERTIFICATE OF INCORPORATION ARTICLE 1 NAME The name of this corporation is AMOR 14 Corporation ARTICLE 2 REGISTERED OFFICE AND AGENT The address of the initial registered office at this corporation is 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, State of Delaware 19808, and the name of its initial registered agent at such address is Corporation Service Company. ARTICLE 3 PURPOSES The purpose of this corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. ARTICLE 4 SHARES This corporation shall have authority to issue 10,000 shares of common stock, and each share shall have a par value of $1.00. Pursuant to 11 U.S.C. 1123, notwithstanding any other provision contained herein to the contrary, the Corporation shall not issue nonvoting equity securities. ARTICLE 5 BY-LAWS The Board of Directors shall have the power to adopt, amend or repeal the By-Laws for this corporation, subject to the power of the stockholders to amend or repeal such By-Laws. The stockholders shall also have the power to adopt, amend or repeal the By-Laws for this corporation. 13 Exhibit T3A-3 ARTICLE 6 ELECTION OF DIRECTORS Written ballots are not required in the election of Directors. ARTICLE 7 PROVISIONS FOR A COMPROMISE OR ARRANGEMENT Whenever a compromise or arrangement is proposed between this corporation and Ito creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may) on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of section 291 of Title 8 of the Delaware Code or on the application of trustee in dissolution or of any receiver or receivers appointed for this the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders manner as the said court directs, If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation. ARTICLE 8 PREEMPTIVE RIGHTS No preemptive rights shall exist with respect to shares of stock or securities convertible into shares of stock of this corporation. ARTICLE 9. CUMULATIVE VOTING The rights to cumulate votes in the election of Directors shall not exist with respect to shares of stock of this corporation. 14 Exhibit T3A-3 ARTICLE 10 AMENDMENTS TO CERTIFICATE OF INCORPORATION This corporation reserves the right to amend or repeal any of the provisions contained in this Certificate of incorporation in any manner now or hereafter permitted by law, and the rights of the stockholders of this corporation are granted subject to this reservation. ARTICLE 11 LIMITATION OF DIRECTOR LIABILITY To the full extent that the Delaware General Corporation Law, as it exists on the date hereof or may hereafter be amended, permits the limitation or elimination of the liability of directors, a director of this corporation shall not be liable to this corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Any amendment to or repeal of this Article 11 shall not adversely affect any right or protection of a director of this corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. ARTICLE 12 AFFIRMATIVE VOTE The affirmative vote of the holders of all the issued and outstanding shares of common stock entitled to vote shall be necessary to take any of the following corporate actions with respect to this Corporation or SIGC: (i) any merger, consolidation or sale of all or substantially all the assets of this Corporation or SIGC; (ii) the filing of a voluntary petition in bankruptcy or the commencement of a voluntary ease by this Corporation or by this Corporation in its capacity as a general partner of SIGC on behalf of SIGC under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect or the consent to the entry of an order for relief in an involuntary case under any such law, or the application by this Corporation or by this Corporation in its capacity as a general partner of SIGC on behalf of SIGC for or consent to the appointment of a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of this Corporation SIGC or any substantial part of their respective properties, or the taking of any action in contemplation of any of the foregoing or to liquidate, dissolve or wind up this Corporation of SIGC; and (iii) any amendment to this Article of the Certificate of Incorporation. 15 Exhibit T3A-12 CERTIFICATE OF INCORPORATION OF OGDEN ALLIED RESOURCE RECOVERY SUPPORT SERVICES, INC. 1. The name of the corporation is: OGDEN ALLIED RESOURCE RECOVERY SUPPORT SERVICES, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par Value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars ($100.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: T. L. Ford Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 20th day of March, 1990. /s/ T.L. Ford ------------------------------ T.L. Ford 1 EX-99.T3A4 4 exhibit_t3a-4.txt Exhibit T3A-4 STATE OF DELAIJARE SECRETARY OF STATE DIVISION OF CORPORATIONS FIIEO O1;OO PM 01/12/1595 950006621 -- 2470550 CERTIFICATE OF INCORPORATION OF OGDEN YORKSHIRE ACQUISITION, INC. 1. The name of the corporation is: OGDEN YORKSHIRE ACQUISITION, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of common stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars ($100.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot 6. The name and mailing address of the incorporator is: M.A. Brzoska Corporation Trust Center 1209 Orange Street Wilmington, Delaware 191101 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 12th day of January, 1995. /s/ M.A. Brzoska --------------------------------- 1 Exhibit T3A-4 STATE OF OELAUARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:OO AM 02/05/1996 960035056 -- 2470550 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN YORKSHIRE ACQUISITION INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation baa authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15, 1996 /s/ -------------------------------------- Authorized Officer 2 Exhibit T3A-4 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN YORKSHIRE ACQUISITION, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN YORKSHIRE ACQUISITION, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ACQUISITION, INC. 3+ The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, , 2001. /s/ ------------------------------------ Name: Title: STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/2001 010126517 -- 2470550 3 EX-99.T3A5 5 exhibit_t3a-5.txt Exhibit T3A-5 CERTIFICATE OF INCORPORATION OF OGDEN YORKSHIRE WATER OF BESSEMEN, INC. * * * * * 1. The name of the corporation is Ogden Yorkshire Water of Bessemen, Inc. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollars and No Cents ($1.00), amounting in the aggregate to One Hundred Dollars and No Cents ($100.00). 5. The name and mailing address of the sole incorporator is as follows NAME MAILING ADDRESS Kathy Widdoes Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 6. The corporation is to have perpetual existence. 7. In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized to make, alter or repeal the by-laws of the corporation. 8. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide. I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of thc State of Delaware, do make this Certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this Twentieth day of October, 1995. /s/ Kathy Widdoes --------------------------- Kathy Widdoes Sole Incorporator CERTIFICATE OF CORRECTION FILED TO CORRECT CERTAIN ERROR IN THE CERTIFICATE OF INCORPORATION OF OGDEN YORKSHIRE WATER OF BESSEMEN, INC. FILED IN THE OFFICE OF THE SECRETARY OF STATE OF DELAWARE ON OCTOBER 27, 1995 Ogden Yorkshire Water of Bessemen. Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: 1. The name of the corporation is Ogden Yorkshire Water of Bessemen, Inc. 2. That a Certificate of Ogden Yorkshire Water of Bessemen, Inc. was filed by the Secretary of State of Delaware on October 27, 1995 and that said Certificate requires correction as permitted by Section 103 of the General Corporation Law of the State of Delaware. 3. The inaccuracy or defect of said Certificate to be corrected is as follows: Name was incorrectly set forth in the heading and Article 1. 4. The Heading and Article 1 of the Certificate are corrected to read as follows: CERTIFICATE OF INCORPORATION OF OGDEN YORKSHIRE WATER OF BESSEMER, INC. 1. The name of the corporation is Ogden Yorkshire Water of Bessemer, Inc. IN WITNESS WHEREOF, said Ogden Yorkshire Water of Bessemen, Inc. has caused this Certificate to be signed by Jeffrey R. Horowitz its Secretary this Thirty-First day of October, 1995. Ogden Yorkshire Water of Bessemen, Inc. By: /s/ Jeffrey R. Horowitz ------------------------------------------ Jeffrey R. Horowitz, Secretary CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN YORKSHIRE WATER OF BESSEMER, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15, 1996 /s/ Patricia Collins -------------------------- Authorized Officer CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN YORKSHIRE WATER OF BESSEMER, INC. It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is Ogden Yorkshire Water of Bessemer, Inc. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article 1 thereof and by substituting in lieu of said Article the following new Article: "The name of the corporation is Ogden Water Systems of Bessemer, Inc. 3. The amendment of the certificate of incorporation herein certified has been duly adopted and written consent has been given in accordance with the provisions of Sections 228 and 242 of the General Corporation Law of the State of Delaware. Signed on July 6, 2000. /s/ Jeffrey R. Horowitz ----------------------------------- Jeffrey R. Horowitz, Secretary CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN WATER SYSTEMS OF BESSEMER, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN WATER SYSTEMS OF BESSEMER, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA BESSEMER, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins ----------------------------- Name: Patricia Collins Title: Asst. Secretary EX-99.T3A6 6 exhibit_t3a-6.txt Exhibit T3A-6 CERTIFICATE OF INCORPORATION OF CUNNINGHAM ENVIRONMENTAL SUPPORT, INC. Pursuant to Section 402 of the Business Corporation Law The undersigned, being over the age of eighteen (18) years, under Section 4.02 of the Business Corporation Law of the State of New York, does hereby set forth: FIRST: The name of the Corporation is: CUNNINGHAM ENVIRONMENTAL SUPPORT, INC. SECOND: The purposes for which it is formed are to do any and all of the things hereafter set forth to the same extent as natural persons might or could do in any part of the world, namely: To engage in any lawful act or activity for which a corporation may be organized under the Business Corporation Law of the State of New York. The Corporation is not formed to engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body without such consent or approval, first being obtained. To acquire and take over as a going concern and thereafter to carry on the business of any person, firm or corporation engaged in any business which this Corporation is authorized to carry on, and in connection therewith to acquire the good will and all or any of the assets, and to assume or otherwise provide for all or any of the liabilities of any such business. To enter into, make, perform, and carry out contracts of every sort and kind which may be necessary or convenient for the business of the Corporation or business of a similar nature, with any person, firm, corporation, private, public or municipal body politic under the government of the United States or any state, territory or colony thereof, or any foreign government, so far as, and to the same extent that the same may be done and performed by corporations organized under the Business Corporation Law. To do all and everything necessary, suitable and proper for the accomplishment of any of the purposes., the attainment of any of the objects or the furtherance of any of the powers hereinabove set forth, either alone or in conjunction with other corporations, firms or individuals and either as principals or agents, and to do every other act or acts, thing or things, incidental or appurtenant to or growing out of or connected with the aforesaid objects, purposes or powers of any of them. This foregoing enumeration of specific powers shall not be deemed to limit or restrict in any manner the general powers of the Corporation, and the enjoyment of and exercise thereof, as conferred by the laws of the State of New York upon corporations organized under the provisions of the Business Corporation Law. THIRD: The office of the Corporation shall be located in the County of Madison, State of New York. FOURTH: The aggregate number of shares which the Corporation shall have the authority to issue is Two Hundred (200), all of which are to be without par value. FIFTH: The shares without par value shall be issued and sold for such consideration as from time to time may be fixed by the Board of Directors. SIXTH: Each stockholder of record shall be entitled at all meetings of the Corporation, and in any other matter requiring a vote, to one (1) vote for each share of stock standing in his name upon the books of the Corporation. SEVENTH: The Secretary of the State of the State of New York is designated as the agent of the corporation upon whom process against it may be served. The post office address to which the Secretary of State shall mail a copy of any process against it served upon him is: 21A Valley Road Madison, New York 13402 EIGHTH: The Business shall commence January 2, 1991. IN WITNESS WHEREOF, I have hereunto signed my name and acknowledged this Certificate of Incorporation this 21st day of December, 1990. /s/ David A. Holstein -------------------------------- David A. Holstein 90 Presidential Plaza Syracuse, New York 13202 2 Exhibit T3A-6 STATE OF NEW YORK ) COUNTY OF ONONDAGA) ss: On this 21st day of December, 1990 before me personally appeared David A. Holstein, to me known and known to me to be the individual described in and who executed the foregoing Certificate of Incorporation; and he duly acknowledged to me that he executed the same. /s/ Jill L. Robinson --------------------------------- Notary Public Exhibit T3A-6 CERTIFICATE OF CHANGE OF CUNNINGHAM ENVINROMENTAL SUPPORT, INC. UNDER SECTION 805-A OF THE BUSINESS CORPORATION LAW WE, THE UNDERSIGNED, Lewis Ott Ward and Andrew C. Kidd, being respectively the President and the Secretary of Cunningham Environmental Support, Inc., hereby certify: 1. The name of the corporation is Cunningham Environmental Support, Inc. 2. The Certificate of Incorporation of said corporation was filed by the Department of State on December 24, 1990. 3. The following was authorized by the Board of Directors: To change the location of the corporation's office in New York from County of Madison, State of New York, to County of New York, State of New York. To change the post office address to which the Secretary of State shall mail a copy of process in any action or proceeding against the corporation which may be served on him from 21A Valley Road, Madison, New York 13402, to c/o C T Corporation System, 1633 Broadway, New York, New York 10019. To designate C T CORPORATION SYSTEM, 1633 Broadway, New York, New York 10019 as its registered agent in New York upon whom all process against the corporation may be served. IN WITNESS WHEREOF, we have signed this certificate on the 1st day of February, 1995, and we affirm the statements contained therein as true under penalties of perjury. /s/ Lewis Ott Ward Lewis Ott Ward, President /s/ Andrew C. Kidd ----------------------------- Andrew C. Kidd, Secretary 5 Exhibit T3A-6 CERTIFICATE OF CHANGE OF CUNNINGHAM ENVIRONMENTAL SUPPORT, INC. (Under Section 805-A of the Business Corporation Law) FIRST: The name of the corporation is CUNNINGHAM ENVIRONMENTAL SUPPORT, INC. SECOND: The certificate of incorporation of the corporation was filed by the Department of State on 12/24/90. THIRD: The certificate of incorporation of the corporation is hereby changed, pursuant to the authorization of the Board of Directors of the corporation, so as to change the post office address to which the Secretary of State shall mail a copy of any process against the corporation served upon him and to change the designation of registered agent. To accomplish said changes: (a) The following statement of said post office address to which the Secretary of State shall mail a copy of process is substituted: "The post office address within the State of New York to which the Secretary of State shall mail a copy of any process against the corporation served upon him is c/o The Prentice Hall Corporation System, Inc., 500 Central Avenue, Albany, New York 12206-2290." (b) The following statement of designation of registered agent is substituted: "The name and address of the registered agent of the corporation are The Prentice-Hall Corporation System. Inc., 500 Central Avenue, Albany, New York 12206-2290. Said registered agent is to be the registered agent upon which process against the corporation may be served." IN WITNESS WHEREOF, we have subscribed this document on the date hereinafter set forth and do hereby affirm, under the penalties of perjury, that the statements contained therein have been examined by us and true and correct. Dated: February 29, 1996 Name of Signer: /s/ Jeffrey R. Horowitz ---------------------------------- Jeffrey R. Horowitz Secretary Name of Signer: /s/ Timothy J. Simpson ---------------------------------- Timothy J. Simpson Assistant Secretary 7 Exhibit T3A-6 Certificate of Change of CUNNINGHAM ENVIRONMENTAL SUPPORT, INC. (Under Section 805-A of the Business Corporation Law) FIRST: The name of the corporation (the "corporation") is CUNNINGHAM ENVIRONMENTAL SUPPORT, INC. SECOND: The certificate of incorporation of the corporation was filed by the Department of State on 12-24-1990 THIRD: The certificate of incorporation of the corporation is hereby changed, so as to change the post office address to which the Secretary of State of New York shall mail a copy of any process against the corporation served upon said Secretary of State and to change the address of the registered agent; and to accomplish said changes, the statements in the certificate of incorporation relating to said post office address and the designation of registered agent hereby stricken and the following statements are substituted in lieu thereof: "The post office address within the State of New York to which the Secretary of State of New York shall mail a copy of any process against the corporation served upon him is c/o THE PRENTICE HALL CORPORATION SYSTEM, INC. 80 State Street, Albany, New York 12207. "The name and address of the registered agent of the corporation are THE PRENTICE HALL CORPORATION SYSTEM, INC. 80 State Street, Albany, New York 12207. Said registered agent is to be the agent upon which process against the corporation may be served." FOUTH: A notice of the proposed changes was mailed by the undersigned to the corporation not less than 36 days prior to the date of the delivery of this certificate to the Department of State and the corporation has not objected thereto. The person signing this certificate is the agent of the corporation to whose address the Secretary of State of State of New York is required to mail copies of process and the registered agent of the corporation. IN WITNESS WHEREOF, we have subscribed this document on the date set forth below and do hereby affirm, under the penalties of perjury, that the statements contained therein have been examined by us and are true and correct. Date: March 3, 1997 THE PRENTICE-HALL CORPORATION SYSTEM, INC. /s/ William G. Popeo ---------------------------------- William G. Popeo, Vice President /s/ John H. Pelletier ---------------------------------- John H. Pelletier, Asst. Secretary 9 Exhibit T3A-6 Certificate of Amendment of the Certificate of Incorporation of CUNNINGHAM ENVIRONMENTAL SUPPORT, INC. Under Section 805 of the Business Corporation Law FIRST: The name of the corporation is Cunningham Environmental Support, Inc. SECOND The Certificate of Incorporation was filed with the Secretary of State of New York on December 24, 1990. THIRD: The Certificate of Incorporation is amended to change the name of the Corporation. FOURTH: To accomplish the foregoing amendment, Article First of the Certificate of Incorporation relating to name, is hereby stricken out in its entirety, and the following new Article is substituted in lieu thereof: FIRST: The name of the corporation is Covanta Cunningham Environmental Support, Inc. FIFTH: The manner in which the foregoing amendment of the certificate of incorporation was authorized is as follows: By vote of the Board of Directors followed by a vote of the shareholders of all outstanding shares IN WITNESS WHEREOF, I have subscribed this document on March 12, 2001 and do hereby affirm, under the penalties of perjury, that the statement contained herein have been examined by us and are true and correct. /s/ Patricia Collins -------------------------- Name: Patricia Collins Assistant Secretary EX-99.T3A7 7 exhibit_t3a-7.txt Exhibit T3A-7 CERTIFICATE OF INCORPORATION OF OGDEN POWER CORPORATION 1. The name of the Corporation is: OGDEN POWER CORPORATION. 2. The address of its registered office in the State of Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover, County of Kent. The name of its registered agent at such address is The Prentice-Hall Corporation System, Inc. 3. The nature of business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Thousand (1,000) shares and all of such shares shall have a par value of $1.00 each. 5. The Board of Directors is authorized to make, alter or repeal the Bylaws of the Corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: Sharon G. Province Ogden Environmental and Energy Services Co., Inc. 5510 Morehouse Drive San Diego, CA 92121 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying accordingly have hereunto set my hand this 9th day of July, 1994. By /s/ Sharon G. Province ------------------------ Sharon G. Province Incorporator 1 CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN ROSEMARY OPERATIONS, INC. (a Delaware corporation) INTO OGDEN POWER CORPORATION (a Delaware corporation) It is hereby certified that: 1 Ogden Power Corporation [hereinafter sometimes referred to as the "Corporation"] is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares [of each class]i of the stock of Ogden Rosemary Operations, Inc., which is also a business corporation of the State of Delaware. 3. On May 10, 1999, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Rosemary Operations, Inc. into the Corporation: RESOLVED that Ogden Rosemary Operations, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Rosemary Operations, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Rosemary Operations, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Rosemary Operations, Inc. 2 RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. Executed on 5/18/99 OGDEN POWER CORPORATION By: /s/ Jeffrey R. Horowitz ------------------------------------ Jeffrey R. Horowitz, Secretary 3 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN POWER CORPORATION It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN POWER CORPORATION 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ENERGY AMERICAS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins --------------------------- Name: Patricia Collins Title: Asst. Secretary 4 CERTIFICATE OF OWNERSHIP AND MERGER OF Ogden Brandywine Operations, Inc. (Delaware corporations) INTO Covanta Energy Americas, Inc. (a Delaware corporation) It is hereby certified that: 1. Covanta Energy Americas, Inc., hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of each class of the stock of Ogden Brandywine Operations, Inc., which is also a business corporation of the State of Delaware. 3. On April 30, 2001, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Brandywine Operations, Inc., into the Corporation: RESOLVED that Ogden Brandywine Operations, Inc., be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Brandywine Operations, Inc., be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Brandywine Operations, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Brandywine Operations, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. 5 RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be upon filing. Executed on May 18, 2001 Covanta Energy Americas, Inc. By: /s/ Jeffrey R. Horowitz ------------------------------------ Jeffrey R. Horowitz, Secretary 6 EX-99.T3A8 8 exhibit_t3a-8.txt Exhibit T3A-8 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN ENERGY CONSTRUCTION, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN ENERGY CONSTRUCTION, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article of the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ENERGY CONSTRUCTION, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins ------------------------------ Name: Patricia Collins Title: Asst. Secretary 1 Exhibit T3A-8 CERTIFICATE OF INCORPORATION OF OGDEN ENERGY CONSTRUCTION, INC. The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "General Corporation Law of the State of Delaware"), hereby certifies that: FIRST: The name of the corporation (hereinafter called the "corporation") is OGDEN ENERGY CONSTRUCTION, INC. SECOND: The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington, Wilmington, Delaware, County of New Castle, 19805; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is 100 shares. The par value of each of such shares is $1.00. All such shares are of one class and are shares of Common Stock. Each outstanding share of which, will be entitled to one vote. FIFTH: The name and the mailing address of the incorporator are as follows: NAME MAILING ADDRESS Jane A. Gross 40 Lane Road Fairfield, NJ 07007-2615 SIXTH: The corporation is to have perpetual existence. Signed on June 19, 2000 /s/ Jane A. Gross ---------------------------- Incorporator: Jane A. Gross 2 EX-99.T3A9 9 exhibit_t3a-9.txt Exhibit T3A-9 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 01/16/1997 971017012 -- 2708045 CERTIFICATE OF INCORPORATION OF OGDEN ENERGY MANAGEMENT CORPORATION The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "General Corporation Last of the State of Delaware"), hereby certifies that: FIRST: The name of the corporation (hereinafter called the "corporation") is Ogden Energy Management Corporation. SECOND: the address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington, Wilmington, Delaware, County of New Castle, 19805; and the name of the registered agent of the corporation in the State of Delaware at such address is the Corporation Service Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100). The par value of each of such shares is One Dollar and No Cents ($1.00). All such shares are of one class and are shares of Common Stock. Each outstanding share of which, will be entitled to one vote. FIFTH: The name and the mailing address of the incorporator are as follows: NAME MAILING ADDRESS Jeffrey R. Horowitz 40 Lane Road Fairfield, New Jersey 07007 SIXTH: The corporation is to have perpetual existence. 1 Exhibit T3A-9 SEVENTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented. EIGHTH: From time to time any of the provisions of this certificate of incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the corporation by this certificate of incorporation are granted subject to the provisions of this Article Eighth. Signed on January 16, 1997 /s/ Jeffrey R. Horowitz ----------------------------------- Incorporator Jeffrey R. Horowitz 2 Exhibit T3A-9 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION BEFORE PAYMENT OF ANY PART OF THE CAPITAL OF OGDEN ENERGY MANAGEMENT CORPORATION It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is Ogden Energy Management Corporation. 2. The corporation has not received any payment for any of its stock. 3. The certificate of incorporation of the corporation is hereby amended by striking out Article First thereof and by substituting in lieu of said Article the following new Article: FIRST: The name of the corporation (hereinafter called the "corporation") is Ogden Energy Group, Inc. 4. The amendment of the certificate of incorporation of the corporation herein certified was duly adopted, pursuant to the provision of Section 241 of the General Corporation Law of the State of Delaware, by the sole incorporator, no directors having been named in the certificate of incorporation and no directors having been elected. Signed on February 6, 1997. /s/ Jeffrey R. Horowitz -------------------------- Sole Incorporator Jeffrey R. Horowitz STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 02/07/1997 971041260 -- 2708045 3 Exhibit T3A-9 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN ENERGY GROUP, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN ENERGY GROUP, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ENERGY GROUP, NC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s. Scott Mackin ----------------------------- Name: Scott Mackin Title: President STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/2001 010126256 -- 2708045 4 EX-99.T3A10 10 exhibit_t3a-10.txt Exhibit T3A-6 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 04:00 PM 10/20/1995 950242877 - 2554245 CERTIFICATE OF INCORPORATION OF OGDEN ENERGY, INC * * * * * 1. The name of the corporation is Ogden Energy, Inc. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollars and No Cents ($1.00), amounting in the aggregate to One Hundred Dollars and No Cents ($100.00) 3, The name and mailing address of the sole incorporator is as follows: NAME MAILING ADDRESS Kathy Widdoes Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 6. The corporation is to have perpetual existence. 7. In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized to make, alter or repeal the by-laws of the corporation. 8. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide. I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this Twentieth day of October, 1995. /s/ Kathy Widdoes ---------------------- Kathy Widdoes Sole Incorporator 1 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 02/06/1996 960035181 - 2554245 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: I. The name of the corporation (hereinafter called the "corporation") is OGDEN ENERGY, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15, 1996 /s/ Jeffrey Horowitz ---------------------- Authorized Officer 2 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN ENERGY, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is Ogden Energy, Inc. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is Covanta Energy International, Inc. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins ------------------------------- Name: Patricia Collins Title: Asst. Secretary STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/2001 010126268 - 2554245 3 EX-99.T3A12 11 exhibit_t3a-12.txt Exhibit T3A-12 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 11:30 AM 12/28/1990 7720362096 -- 2225312 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION * * * * * Ogden Allied Resource Recovery Support Services, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That the Board of Directors of said corporation, by the unanimous written consent of its members, filed with the minutes of the Board, adopted a resolution proposing and declaring advisable the following amendment to the Certificate of Incorporation of said corporation: RESOLVED, that the Certificate of Incorporation of Ogden Allied Resource Recovery Support Services, Inc. be amended by changing the First Article thereof so that, as amended, said Article shall be and read as follows: "The name of the corporation is Ogden Resource Recovery Support Services, Inc." SECOND: That in lieu of a meeting and vote of stockholders, the stockholders have given unanimous written consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware. THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware. 2 Exhibit T3A-12 IN WITNESS WHEREOF, said Ogden Allied Resource Recovery Support Services, Inc. has caused this certificate to be signed by Peter Allen, its Vice President and attested by J. L. Effinger, its Assistant Secretary this 20th day of December, 1990. OGDEN ALLIED RESOURCE RECOVERY SUPPORT SERVICES, INC. By: /s/ Peter Allen -------------------------- Peter Allen, Vice President ATTEST: By: J.L. Effinger ---------------------------------- J.L. Effinger, Assistant Secretary 3 Exhibit T3A-12 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 01/07/1993 930115306 - 2225312 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN RESOURCE RECOVERY SUPPORT SERVICES, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 32 Loockerman Square, Suite L-100, City of Dover 19901, County of Kent. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 12/30, 1992. /s/ Peter Allen --------------------------- Peter Allen, Vice-President Attest: /s/ J.L. Effinger - ------------------------------ J.L. Effinger, Asst. Secretary 4 Exhibit T3A-12 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/2001 010126487 - 2225312 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN RESOURCE RECOVERY SUPPORT SERVICES, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN RESOURCE RECOVERY SUPPORT SERVICES, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ENERGY SERVICES, INC. 3. The amendment of the certificate of incorporation herein certified has been duty adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins ----------------------- Name: Patricia Collins Title: Asst. Secretary 5 Exhibit T3A-12 CERTIFICATE OF AMENDMENT To CERTIFICATE OF INCORPORATION C-E HUNTINGTON RESOURCE RECOVERY ONE CORP. (the "Corporation") a corporation organized and existing under and by virtue of the General Corporation Law (the "Act") of the State of Delaware whose registered office is located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware, DOES HEREBY CERTIFY: FIRST: That by unanimous written consent of the Board of Directors given on March 9, 1990, pursuant to Section 141(f) of the Act, resolutions were duly adopted setting forth a proposed amendment to the Certificate of Incorporation of the Corporation, declaring the amendment to be advisable and calling for submission of the amendment to the stockholder for consideration thereof. The resolution setting forth the proposed amendment is as follows: Delete the words: "The name of the corporation is C-E Huntington Resource Recovery One Corp." and add the words: 6 Exhibit T3A-12 "The name of the Corporation is Ogden Martin Systems of Huntington Resource Recovery One Corp." SECOND: That thereafter, pursuant to resolution of the Board of Directors, the stockholder of all of the outstanding capital shares of the Corporation duly approved the amendment by written consent given on March 9, 1990 pursuant to Section 228 of the Act. THIRD: That the amendment was duly adopted in accordance with the provisions of Section 242 of the Act. IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed and acknowledged by Patricia Collins, its Vice-President, and ___________________, its Assistant Secretary, this 1st day of May, 1990. BY: /s/ Patricia Collins -------------------------- Vice-President ATTEST: /s/ -------------------------- Assistant Secretary 7 Exhibit T3A-12 CERTIFICATE OF AMENDMENT to CERTIFICATE OF LIMITED PARTNERSHIP C-E Huntington Limited Partnership (the "Limited Partnership"), for the purpose of amending the Certificate of Limited Partnership of the Limited Partnership pursuant to Section 17-202 of the Delaware Revised Uniform Limited Partnership Act, hereby certifies that the Certificate of Limited Partnership is amended as follows: 1. Article I. Delete the words: "The name of the limited partnership formed hereby is C-E Huntington Limited Partnership." and add the words: "The name of the limited partnership formed hereby is Ogden Martin Systems of Huntington Limited Partnership." 2. Article III. Delete the words: "The names and business addresses of the General Partners of the Partnership are: Name Business Address C-E Huntington Resource 1000 Prospect Hill Road Recovery One Corp., P.0. Box 9308 a Delaware Corporation Windsor, Connecticut 00595 -- 0500 8 Exhibit T3A-12 C-E Huntington Resource 1000 Prospect Hill Road Recovery Two Corp., P. 0. Box 9308 a Delaware Corporation Windsor, Connecticut 00595 -- 0500 and add the words: "The names and business addresses of the General Partners of the Partnership are: Name Business Address Ogden Martin Systems of 40 Lane Road Huntington Resource CN 2615 Recovery One Corp. Fairfield, NJ 07007 -- 2615 Ogden Martin Systems of 40 Lane Road Huntington Resource CN 2615 Recovery Two Corp. Fairfield, NJ 97007 -- 2615" IN WITNESS WHEREOF, this Certificate of Amendment has been duly executed by a general partner thereunder duly authorized as of May, 1990. Dated: May 1, 1990 OGDEN MARTIN SYSTEMS OF HUNTINGTON LIMITED PARTNERSHIP By: OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY ONE CORP., Its Managing General Partner By: /s/ Patricia Collins ---------------------------- Title: Vice President 9 EX-99.T3A13 12 exhibit_t3a-13.txt Exhibit T3A-13. DELAWARE THE FIRST STATE I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA ENERGY WEST, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-FIFTH DAY OF FEBRUARY, A.D. 1999, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN ENERGY WEST, INC." TO "COVANTA ENERGY WEST, INC.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. Harriet Smith Windsor -------------------------------- Harriet Smith Windsor, Secretary of State 3010023 8100H (SEAL) AUTHENTICATION: 2949959 040132986 DATE: 02-24-04 1 CERTIFICATE OF INCORPORATION OF OGDEN ENERGY WEST, INC. The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "General Corporation Law of the State of Delaware"), hereby certifies that: FIRST: The name of the corporation (hereinafter called the "corporation) is Ogden Energy West, Inc. SECOND: the address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington, Delaware, County of New Castle, 19805; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100). The par value of each of such shares is One Dollar and No Cents ($1.00). All such shares are of one class and are shares of Common Stock. Each outstanding share of which, will be entitled to one vote. FIFTH: The name and the mailing address of the incorporator are as follows:
NAME MAILING ADDRESS ---- --------------- Jeffrey R. Horowitz 40 Lane Road Fairfield, New Jersey 07007
SIXTH: The corporation is to have perpetual existence. 2 SEVENTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented. EIGHTH: From time to time any of the provisions of this certificate of Incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws and all rights at any time conferred upon the stockholders of the corporation by this certificate of incorporation are granted subject to the provisions of this Article Eighth. Signed on February 26, 1999 /s/ Jeffrey R. Horowitz ------------------------------------ Incorporator Jeffrey R. Horowitz 3 CERTIFICATE OF AMENDMENT OP CERTIFICATE OF INCORPORATION OF OGDEN ENERGY WEST, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN ENERGY WEST, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ENERGY WEST, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March _____, 2001. /s/ Patricia Collins --------------------------- Name: Patricia Collins Title: Asst. Secretary 4 EX-99.T3A14 13 exhibit_t3a-14.txt Exhibit T3A-14 CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF PENNSAUKEN, INC. * * * * * To: The Secretary of State State of New Jersey THE UNDERSIGNED, of the age of eighteen years or over, for the purpose of forming a corporation pursuant to the provisions of Title 14A, Corporations, General, of the New Jersey Statutes, do hereby execute the following Certificate of Incorporation: FIRST: The name of the corporation is OGDEN MARTIN SYSTEMS OF PENNSAUKEN, INC. SECOND: The purpose or purposes for which the corporation is organized are: To engage in any activity within the lawful business purposes for which corporations may be organized under the New Jersey Business Corporation Act. THIRD: The aggregate number of shares which the corporation shall have authority to issue is one hundred (100) shares of the par value of One Dollar ($1.00) each. FOURTH: The address of the corporation's initial registered office is 28 West State Street, Trenton, New Jersey 08608, and the name of the corporation's initial registered agent at such address is The Corporation Trust Company. FIFTH: The number of directors constituting the initial board of directors shall be four (4); and the names and addresses of the directors are as follows: NAME ADDRESSES DONALD A. KRENZ c/o Ogden Corporation 277 Park Avenue New York, New York 10172 ROBERT E. CURRY, JR. c/o Ogden Corporation 277 Park Avenue New York, New York 10172 DAVID L. SOKOL c/o Ogden Corporation 277 Park Avenue New York, New York 10172 SALVATORE S. FERRARA c/o Ogden Corporation 277 Park Avenue New York, New York 10172 SIXTH: The names and addresses of the incorporators are as follows: NAMES ADDRESSES JOAN BRUNSON 1633 Broadway New York, New York 10019 PAMELA A. BRISTOL 1633 Broadway New York, New York 10019 VINCENT R. SMITH 1633 Broadway New York, New York 10019 IN WITNESS WHEREOF, we, the incorporators of the above named corporation, have hereunto signed this Certificate of Incorporation on the 20th day of August, 1985. /s/ Joan Brunson ------------------------------ Joan Brunson /s/ Pamela A. Bristol ------------------------------- Pamela A. Bristol /s/ Vincent R. Smith ------------------------------ Vincent R. Smith CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF PENNSAUKEN, INC. To: The Secretary of State State of New Jersey Pursuant to the provisions of Section 14A:9-2(4) and Section 14A:9-4(3), Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment to its Certificate of Incorporation: 1. The name of the corporation is Ogden Martin Systems of Pennsauken, Inc. 2. The following amendment to the Certificate of Incorporation was approved by the directors and thereafter duly adopted by the shareholders of the corporation on the 5th day of January, 1993: "RESOLVED, that Article 'FIRST' of the Certificate of Incorporation of the Corporation be amended to read as follows: 'FIRST: The name of the corporation is OGDEN ENGINEERING SERVICES, INC.'" 3. The number of shares entitled to vote upon the amendment was 100. 4. That in lieu of a meeting and vote of the shareholders and in accordance with the provisions of Section 14A:5-6, the amendment was adopted by the shareholder without a meeting pursuant to the written consent of the shareholder, and the number of shares represented by such consent is 100 shares. 5. The effective date of this Amendment to the Certificate of Incorporation shall be upon filing by the Secretary of State of New Jersey. Dated this 5th day of January, 1993. OGDEN MARTIN SYSTEMS OF PENNSAUKEN, INC. William C. Goldate Senior V.P. GE 24848 By:/s/ Jeffrey R. Horowitz ----------------------------- Jeffrey R. Horowitz Senior Vice President CERTIFICATE OF AMENDMENT TO THE CERTIFICATE OF INCORPORATION OF OGDEN ENGINEERING SERVICES, INC. To: The Secretary of State State of New Jersey Pursuant to the provisions of Section 14A:9-2(4) and Section 14A:9-4(3), Corporation, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment to its Certificate of Incorporation: 1. The name of the corporation is Ogden Engineering Services, Inc. 2. The following amendment to the Certificate of Incorporation was approved by the directors and thereafter duly adopted by the shareholders of the corporation on the 20th day of January, 1994: "RESOLVED, that Article `SECOND' of the Certificate of Incorporation of the Corporation be amended to read as follows: `SECOND: The purpose or purposes for which the corporation is organized are: To design and supervise new construction and installation or reconstruction, modification and repairs in whole or in part of solid waste resource recovery facilities, or component parts, sections, or systems thereof, which combust or otherwise process municipal solid waste to produce and sell steam and/or electricity and other recovered resources, together with all other activities necessary for, or incidental to, the foregoing, including: (i) To purchase or otherwise acquire, invest in, own, mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade in and deal in and with real estate and personal property of every kind, class and description (including, without limitation, goods, wares and merchandise of every kind, class and description); (ii) To borrow or lend money, and to make and issue notes, bonds, debentures, obligations, and evidence of indebtedness of all kinds, whether secured by mortgage, pledge, or otherwise, without limit as to amount, and to secure the same by mortgage, pledge, or contracts of every kind and description; (iii) To purchase, receive, take by grant, lease or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and with, real property, or any interest therein, wherever situated; (iv) To subscribe for, take, acquire, hold, sell, exchange and deal in shares, stocks, bonds, obligations and securities of any corporation, government, authority or company; to form, promote, subsidize and assist companies, syndicates or partnerships of all kinds and to finance and refinance the same; and to guaranty the obligations of other persons, fins or corporations; (v) To carry on any business, operation or activity referred to in the foregoing paragraphs either alone or in conjunction with, or as a partnership, joint venture or other arrangement with, any corporation, association, trust, firm or individual; and (vi) To do any other thing permitted by all present and future laws of the State of New Jersey applicable to business corporations and to corporations authorized for the practice of engineering." 3. The number of shares entitled to vote upon the amendment was 100. 4. That in lieu of a meeting and vote of the shareholders and in accordance with the provisions of Section l4A:5-6, the amendment was adopted by the shareholder without a meeting pursuant to the written consent of the shareholder, and the number of shares represented by such consent is 100 shares. 5. The effective date of this Amendment to the Certificate of Incorporation shall be upon filing by the Secretary of State of New Jersey. Dated this 20th day of January, 1994. OGDEN ENGINEERING SERVICES, INC. By: /s/ Jeffrey R. Horowitz ------------------------------ Jeffrey R. Horowitz Senior Vice President C-102A Rev 12/93 New Jersey Department of the Treasury Division of Revenue Certificate of Amendment to Certificate of Incorporation (For Use by Domestic Profit Corporations) Pursuant to the provisions of Section 14A:9-2 (4) and Section 14A:9-4 (3), Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment to its Certificate of Incorporation: 1. The name of the corporation is: OGDEN ENGINEERING SERVICES, INC. 2. The following amendment to the Certificate of Incorporation was approved by the directors and thereafter duly adopted by the shareholders of the corporation on the 28th day of February, 2001. Resolved, that Article First of the Certificate of Incorporation be amended to read as follows: First: The name of the corporation is COVANTA ENGINEERING SERVICES, INC. 3. The number of shares outstanding at the time of the adoption of the amendment was: 100 The total number of shares entitled to vote thereon was: 100 If the shares of any class or series of shares are entitled to vote thereon as a class, set forth below the designation and number of outstanding shares entitled to vote thereon each such class or series. (Omit if not applicable). N/A 4. The number of shares voting for and against such amendment Is as follows: (If the shares of any class or series are entitled to vote ass class, set forth the number of shares of each such class and series voting for and against the amendment, respectively).
Number of Shares Voting for Amendment Number of Shares Voting Against Amendment - ------------------------------------- ----------------------------------------- 100 0
5. If the amendment provides for an exchange, reclassification or cancellation of issued shares, set forth a statement of the manner in which the same shall be effected. (Omit if not applicable). N/A 6. Other provisions: (Omit if not applicable). N/A By: (Signature) Dated this 1st day of March 2001 Executive Vice-President May be executed by the Chairman of the Board, or the Presidents, or a Vice President of the Corporation. EX-99.T3A15 14 exhibit_t3a-15.txt Exhibit T3A-15 -------------- Delaware The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA GEOTHERMAL OPERATIONS HOLDINGS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-SECOND DAY OF SEPTEMBER, A.D. 1999, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "GEOTHERMAL OPERATIONS HOLDINGS, INC." TO "COVANTA GEOTHERMAL OPERATIONS HOLDINGS, INC. ", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ----------------------------------------- Harriet Smith Windsor, Secretary of State CERTIFICATE OF INCORPORATION OF GEOTHERMAL OPERATIONS HOLDINGS, INC. The undersigned, a natural person1 for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter l, Title 8 of the Delaware Code and to acts amendatory thereof and supplemental thereto. and known, identified and referred to as the "General Corporation Law of the State of Delaware), hereby certifies that: FIRST: The name of the corporation (hereinafter called. The "corporation") is Geothermal Operations Holdings, Inc. SECOND: the address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington, Wilmington, Delaware, County of New Castle, 19805; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: the total number of shares of stock which the corporation shall have authority to issue is One Hundred (100). The par value of each of such shares is One Dollar and No Cents ($1.00). All such shares are of one class and are shares of Common Stock. Each outstanding share of which, will be entitled to one vote. FIFTH: The name and the mailing address of the incorporator are as follows: NAME MAILING ADDRESS ---- --------------- Jane A. Gross 40 Lane Road Fairfield. Now Jersey 07007 SIXTH: The corporation is to have perpetual existence. SEVENTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of ss. 102 of the General Corporation Law of the State of Delaware, as the same may be supplemented and amended. EIGHTH: From time to time any of the provisions of this certificate of incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the corporation by this certificate of incorporation are granted subject to the provisions of this Article Eighth. Signed on September 21, 1999. Incorporator /s/ Jane A. Gross -------------------- Jane A. Gross CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF GEOTHERMAL OPERATIONS HOLDINGS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is GEOTHERMAL OPERATIONS HOLDINGS, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation) is COVANTA GEOTHERMAL OPERATIONS HOLDINGS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the Genera! Corporation Law of the State of Delaware, IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins ---------------------- Name: Patricia Collins Title: Assistant Secretary EX-99.T3A16 15 exhibit_t3a-16.txt THE FIRST STATE I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA GEOTHERMAL OPERATIONS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-SIXTH DAY OF NOVEMBER, A.D. 1990, AT 4:30 O'CLOCK P.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "ERCE HYDRO PARTNER I, INC." TO "OGDEN GEOTHERMAL OPERATIONS, INC." FILED THE FIFTEENTH DAY OF OCTOBER, A.D. 1991, AT 9 O`CLOCK A.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTY-SEVENTH DAY OF JANUARY, A.D. 1993, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT CHANGING ITS NAME FROM "OGDEN GEOTHERMAL OPERATIONS, INC." TO "COVANTA GEOTHERMAL OPERATIONS, INC.", FILED THE FOURTEENTH DAY OF MARCH, A. D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ------------------------- Harriet Smith Windsor, Secretary of State CERTIFICATE OF INCORPORATION OF ERCE HYDRO PARTNER I, INC. 1. The name of the corporation is: ERCE HYDRO PARTNER I, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Thousand Five Hundred (1,500) all of such shares shall be without par value. 5. The board of directors is authorized to make, alter or repeal the by--laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: M.C. Kinnamon Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator herein-before named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware. do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set ay hand this 26th day of November, 1990. /s/ M. C. Kinnamon ------------------------ M. C. Kinnamon CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF ERCE HYDRO PARTNER I, INC. ERCE Hydro Partner I, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: The amendment to the Corporation's Certificate of Incorporation set forth in the following resolution approved by the Corporations Board of Directors and stockholders was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware: That the Corporation amend its Certificate of Incorporation as follows: 1. The name of the corporation is: Ogden Geothermal Operations, Inc. IN WITNESS WHEREOF, ERCE Hydro Partner I, Inc. has caused this Certificate to be signed and attested by its duly authorized officer, this 30th day of September, 1991. ERC HYDRO PARTNER I, INC. /s/ J. Mark Elliott, President ------------------------------ J. Mark Elliott, President ATTEST: /s/ Sharon G. Province___ Sharon G. Province, Secretary CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OGDEN GEOTHERMAL OPERATIONS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN GEOTHERMAL OPERATIONS, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 32 Loockerman Square, Suite L-100, City of Dover 19901, County of Kent. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on Jan. 11, 1993. /s/ Peter Allen --------------------------- Peter Allen, Vice-President Attest: /s/ J.L. Effinger - ----------------- J.L. Effinger, Asst. Secretary CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATIN Exhibit T3A-16 -------------- CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN GEOTHERMAL OPERATIONS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN GEOTHERMAL OPERATIONS, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA GEOTHERMAL OPERATIONS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March,2001. /s/ Patricia Collins ---------------------- Name: Patricia Collins Title: Asst. Secretary EX-99.T3A17 16 exhibit_t3a-17.txt Exhibit T3A-17. FEDERAL IDENTIFICATION NO. 133382130 --------------------------- The Commonwealth of Massachusetts William Francis Galvin Secretary of the Commonwealth One Ashburton Place, Boston, Massachusetts 02108-1512 ARTICLES OF AMENDMENT (General Laws, Chapter 156B, Section 72)
We /s/ Anthony Orlando , /*Executive Vice President, ------------------------------------------------------------------------- and /s/ Patricia M. Collins , /*Assistant Clerk, --------------------------------------------------------------------------- of OGDEN HAVERHILL PROPERTIES, INC , --------------------------------------------------------------------------------------------------------- (Exact name of corporation) located at c/o Corporation Service Company, 84 State Street, Boston, MA 02109 , --------------------------------------------------------------------------------------------------- (Street address of corporation in Massachusetts) certify that these Articles of Amendment affecting articles numbered: Article First is amended to read: First: The name of the corporation is COVANTA HAVERHILL PROPERTIES, INC. (Number those articles 1, 2. 3, 4, 5 and/or 6 being amended,) of the Articles of Organization were duly adopted at a meeting held on February 28 , 2001, by vote of: 100 shares of common of 100 shares outstanding, - ----------------- ------------------------------ ------------------------- (type, class & series, if any) shares of of shares outstanding, and - ----------------- ------------------------------ -------------------- (type, class & series, if any) shares of of shares outstanding, - ----------------- ------------------------------ ------------------------- (type, class & series, if any)
******************************************************************** **being at least two-thirds of each type, class or series outstanding and entitled to vote thereon and of each type, class or series of stock whose rights are adversely affected thereby: *Delete the inapplicable words. **Delete the inapplicable clause ` For amendments adopted pursuant to Chapter 156H, Section 70. ` For amendments adopted pursuant to Chapter 156H, Section 71. Note: If the space provided under any article or item in this form is insufficient, additions shall be set fresh on one side only of separate 8 1/2 x 11 sheets of paper with a left margin of as least 1 inch. Additions to more than one article may be made on a single sheet so long as each article requiring each addition is clearly indicated. To change the number of shares and the par value (if any) of any type, class or series of stock which the corporation is authorized to issue, fill in the following The total presently authorized is:
- ------------------------------------------------ ------------------------------------------------------------------ WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS - ------------------------------------------------ ------------------------------------------------------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ Common: Common: - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ Preferred: Preferred: - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ Change the total authorized to: no change - ------------------------------------------------ ------------------------------------------------------------------ WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS - ------------------------------------------------ ------------------------------------------------------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ Common: Common: - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ Preferred: Preferred: - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------ - --------------------- -------------------------- -------------------- -------------------------- ------------------
The foregoing amendment(s) will become effective when these Articles of Amendment are filed in accordance with General Laws, Chapter 156B, Section 6 unless these articles specify, in accordance with the vote adopting the amendment, a later effective date not more than thirty days after such filing, in which event the amendment will become effective on such later date.
Later effective date: _________________________________________________. SIGNED UNDER THE PENALTIES OF PERJURY, this 1st day of March ,20 01. -------- ---------- *President / * Executive , Vice President, /s/ A. Orlando - ------------------------------------------------------------------------------------- *Clerk/ *Assistant Clerk, /s/ Patricia Collins , - ------------------------------------------------------------------------------------- *Delete the inapplicable words.
FORM CD-74-10M-1O-79-152328 The Commonwealth of Massachusetts MICHAEL JOSEPH CONNOLLY Secretary of State One Ashburton Place, Boston, Massachusetts 02108 RESTATED ARTICLES OF ORGANIZATION General Laws, Chapter 156B, Section 74 This certificate must be submitted to the Secretary of the Commonwealth within sixty days after the date of the vote of stockholders adopting the restated articles of organization. The fee for filing this certificate is prescribed by General Laws, Chapter 156B, Section 114. Make check payable to the Commonwealth of Massachusetts.
__________ We David L. Sokol President/*******and Bruce W. Stone , Clerk/******** of OMS Haverhill Properties, Inc. ...................................................................................................................... (Name of Corporation) located at 2 Oliver Street, Boston, MA 02109 do hereby certify that the following restatement of the articles of organization of the corporation was duty adopted at a meeting held on February 20, ,.1987 , by vote of 100 shares of Common out of 100 shares outstanding, (Class of Stock) shares of out of shares outstanding, and (Class of Stock) shares of out of shares outstanding, (Class of Stock)
being at least two-thirds of each class of stock outstanding and entitled to vote and of each class or series of stock adversely affected thereby: - 1. The name by which the corporation shall be known is: Ogden Haverhill Properties, Inc. 2. The purposes for which the corporation is formed are as follows: - (a) To acquire, sell, lease, hold, manage, maintain, own and otherwise deal with and in real estate, and (b) to carry on any and all business and activity which may be lawfully carried on by a corporation organized under the provisions of Chapter 156B of the General Laws of the Commonwealth of Massachusetts. Note: If the space provided under any article or item in this form is insufficient, additions shall be set for binding on separate 8 1/2 x 11 sheets of paper leaving a left margin of at least 1 inch for binding. Additions to more than one article may be continued on a single sheet so long as each article requiring each such addition is clearly indicated. 3. The total number of shares and the par value, if any, of each class of stock which the corporation is authorized to issue is as follows:
WITHOUT PAR VALUE WITH PAR VALUE CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE Preferred ------ ------ ------ Common ------ 100 $1.00
*4. If more than one class is authorized, a description of each of the different classes of stock with, if any, the preferences, voting powers, qualifications, special or relative rights or privileges as to each class thereof and any series now established: N/A *5. The restrictions, if any, imposed by the articles of organization upon the transfer of shares of stock of any class are as follows: None *6. Other lawful provisions, if any, for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors or shareholders, or of any class of stockholders: See Article 6 which is attached hereto and incorporated herein by reference THE COMMONWEALTH OF MASSACHUSETTS ARTICLES OF AMENDMENT (General Laws, Chapter 156B, Section 72) ================================================================================ I hereby approve the within Articles of Amendment and, the filing fee to the amount of $100 having been paid, said articles are deemed to have been filed with me this 14th day of March, 2001. Effective date: /s/ William Francis Galvin WILLIAM FRANCES GALVIN Secretary of the Commonwealth TO BE FILLED IN BY CORPORATION Photocopy of document to be sent to: ______________________________________ ______________________________________ ______________________________________ Telephone: _____________________________ ARTICLES OF ORGANIZATION Continuation Page ARTICLE 6 The other lawful provisions for the conduct and regulation of business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining or regulating the powers of the corporation, or of its directors or stockholders, or any class of stockholders, are set forth in this Article 6. a. By-Laws. The By-laws may provide that the directors may make, amend or repeal the By-laws in whole or in part, except with respect to any provision thereof which by law or the By-laws requires action by the stockholders. b. Meetings. Meetings of the stockholders of the corporation may be held anywhere in the United States. c. Acting as Partner. The corporation may be a general or limited partner in any business enterprise it would have power to conduct by itself. d. Indemnification. The By-laws may provide for the indemnification of directors, officers, employees and agents, by whomever elected or appointed, to the full extent permitted by law. e. Transactions with Interested Persons. The By-laws may contain provisions providing that no contract or transaction of the corporation shall be void or voidable by reason of the fact that any officer, director or stockholder of the corporation may have held an interest therein. f. Division of Directors Into Classes. The By-laws may contain provisions providing for the division of directors into not more than five classes and prescribe the tenure of office of the directors in each of the classes. g. Vote Required for Certain Transactions. The vote of a majority of the outstanding shares of each class of stock outstanding and entitled to vote thereon shall be sufficient to approve any agreement of merger or consolidation of the corporation with or into another corporation or of another corporation into the corporation, or to approve any sale, lease or exchange of substantially all of the assets of the corporation, notwithstanding any provision of law that would otherwise require a greater vote iii the absence of this provision of Article 6. h. Repurchases by Corporation. The corporation may from time to time offer to purchase and purchase shares from any stockholder of the corporation upon fair and reasonable terms and at a fair and reasonable price, whether or not the stockholder owns a controlling interest in the corporation, without offering to any other stockholder an equal opportunity to sell a ratable number, or any, of his shares of stock in the corporation to the corporation upon comparable terms or at a comparable price, or to make any offer to purchase whatsoever to other stockholders of the corporation. i. Elimination of Directors' Personal Liability. No director shall be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director notwithstanding any provision of law imposing such liability; provided, however, and that this provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section sixty-one or sixty-two of Chapter 156B of the Massachusetts General Laws, or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this paragraph shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to the date of such amendment or repeal. *We further certify that the foregoing restated articles of organization effect no amendments to the articles of organization of the corporation as heretofore amended, except amendments to the following articles 1, 2 & 6 (*if there are no such amendments, state "None".) Briefly describe amendment in space below: Article 1 Change of corporate name from OMS Haverhill Properties, Inc. to Ogden Haverhill Properties, Inc. Article 2 To restate the purpose clause of this corporation in its entirety Article 6 To restate Article 6 in its entirety IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our names this 25th day of February in the year 1987 /s/ David L. Sokol President /s/ Bruce W. Stone Clerk THE COMMONWEALTH OF MASSACHUSETTS RESTATED ARTICLES OF ORGANIZATION (General Laws, Chapter 156B, Section 74) I hereby approve the within restated articles of organization and, the filing fee in the amount of $375.00 having been paid, said articles are deemed to have been filed with me this 27th day of February, 1987. /s/ Michael J. Connolly MICHAEL JOSEPH CONNOLLY Secretary of State Seal TO BE FILLED IN BY CORPORATION PHOTO COPY OF RESTATED ARTICLES OF ORGANIZATION TO BE SENT TO: Debra B. Bonsignore, Principal Brown, Rudnick, Freed & Gesmer One Federal Street Boston, MA 02110 Telephone: (617) 542-3000 Copy Mailed EX-99.T3A18 17 exhibit_t3a-18.txt Exhibit T3A-18 PAGE 1 DELAWARE The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA HEBER FIELD ENERGY, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-SIXTH DAY OF NOVEMBER, A.D. 1990, AT 4:30 O'CLOCK P.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "ERCE HYDRO PARTNER II, INC." TO "OGDEN HEBER FIELD ENERGY, INC." FILED THE FIFTEENTH DAY OF OCTOBER, A. D. 1991, AT 9 0' CLOCK A.M. RESTATED CERTIFICATE, FILED THE TWENTY-FOURTH DAY OF JANUARY, A.D. 1992, AT 1 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTY-FIRST DAY OF JANUARY, A.D. 1993, AT 9 O'CLOCK AM. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN HEBER FIELD ENERGY, INC." TO "COVANTA HEBER FIELD ENERGY, INC.", FILED THE FOURTEENTH DAY OF MARCH, A. D. 2001, AT 9 O`CLOCK A. M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ------------------------------------------ Harriet Smith Windsor, Secretary of State 2247465 8100H AUTHENTICATION: 2949974 1 040133002 DATE: 02-24-04 2 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS Filed 09:00 AM 10/15/1991 912895068-2247465 CERTIFICATE OF INCORPORATION OF ERCE HYDRO PARTNER II, INC. 1. The name of the corporation is: ERCE HYDRO PARTNER II, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue One Thousand Five Hundred (1,500) all of such shares shall be without par value. 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: M. C. Kinnamon Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 26th day of November, 1990. 3 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS Filed 09:00 AM 10/15/1991 912895068-2247465 /s/ M.C. Kinnamon -------------------------------------------- M.C. Kinnamon 4 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS Filed 09:00 AM 10/15/1991 912895068-2247465 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF ERCE HYDRO PARTNER II, INC. ERCE Hydro Partner II, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: The amendment to the Corporation's Certificate of Incorporation set forth in the following resolution approved by the Corporation's Board of Directors and stockholders was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware: That the Corporation amend its Certificate of Incorporation as follows: 1. The name of the corporation is: Ogden Heber Field Energy, Inc. IN WITNESS WHEREOF, ERCE Hydro Partner I, Inc. has caused this Certificate to be signed and attested by its duly authorized officer, this 30th day of September, 1991. ERCE HYDRO PARTNER II, INC. /s/ J. Mark Elliott ------------------------------------------- J. Mark Elliott, President ATTEST: /s/ Sharon G. Province ------------------------------------------- Sharon G. Province, Secretary 5 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS Filed 09:00 AM 10/15/1991 912895068-2247465 6 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS Filed 09:00 AM 10/15/1991 912895068-2247465 RESTATED CERTIFICATE OF INCORPORATION OF OGDEN HEBER FIELD ENERGY, INC. a Delaware Corporation (Under Section 245 of the Delaware General Corporation Law) OGDEN HEBER FIELD ENERGY, INC. (the "Corporation") was originally incorporated as ERCE Hydro Partner II, Inc. The corporation's original Certificate of Incorporation was filed with the Secretary of State of Delaware on November 26, 1990. This Restated Certificate of Incorporation was adopted by the Board of Directors on January 22, 1992 and approved in accordance with the provisions of Sections 228, 242 and 245 of the Delaware General Corporation Law, as amended, by the affirmative written consent of all of the outstanding stock entitled to vote, dated January 22, 1992. The Certificate of Incorporation as previously and herewith amended is hereby restated to read in its entirety as follows: 1. The name the Corporation is OGDEN HEBER FIELD ENERGY, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Thousand Five Hundred (1,500); all of such shares shall be without par value. 5. The Board of Directors is authorized to make, alter or repeal the Bylaws of the Corporation. Election of directors need not be by written ballot. 6. The affirmative vote of the holders of two-thirds of the issued and outstanding shares of common stock entitled to 7 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS Filed 09:00 AM 10/15/1991 912895068-2247465 vote shall be necessary to take any of the following corporate actions: (i) any merger, consolidation or sale of all or substantially all the assets of this Corporation; (ii) the filing of a voluntary petition in bankruptcy or the commencement of a voluntary case by this Corporation under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent to the entry of an order for relief in an involuntary case wider any such law, or the application for or consent to the appointment of a receiver, liquidator, assignee, custodian, trustee or sequestrate (or similar official) of this Corporation or any substantial part of its properties, or the taking of any action in contemplation of any of the foregoing or to liquidate, dissolve or wind up this Corporation; and (iii) any amendment to this Article of the Restated Certificate of Incorporation. IN WITNESS WHEREOF, OGDEN HEBER FIELD ENERGY, INC., has caused this Restated Certificate of Incorporation to be executed by J. Mark Elliott, its President, and to be attested to by Sharon G. Province, its Secretary, this 23rd day of January, 1992. OGDEN HEBER FIELD ENERGY, INC. By: /s/ J. Mark Elliott ------------------------------ J. Mark Elliott, President President Attest: /s/ Sharon G. Province - ---------------------------------- Sharon G. Province Secretary 8 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS Filed 09:00 AM 10/15/1991 912895068-2247465 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN HEBER FIELD ENERGY, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 32 Loockerman Square, Suite L-100, City of Dover 19901, County of Kent. 3. The registered agent of the corporation within the State of Delaware Is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on January 11, 1993. /s/ Peter Allen ----------------------------------- Peter Allen Vice-President - - Attest: /s/ J.L. Effinger - -------------------------------------------- J.L. Effinger, Asst. Secretary 9 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN HEBER FIELD ENERGY, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN HEBER FIELD ENERGY, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA HEBER FIELD ENERGY, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ___, 2001. /s/ Patricia Collins --------------------------------- Name: Patricia Collins Title: Asst. Secretary 10 Exhibit T3A-31 DELAWARE PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA LONG ISLAND, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE SEVENTH DAY OF OCTOBER, A.D. 1991, AT 4:30 O'CLOCK P.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY EIGHT CORP." TO "OGDEN MARTIN SYSTEMS OF LONG ISLAND, INC.", FILED THE TENTH DAY OF OCTOBER, A.D. 1991, AT 2 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTY-SECOND DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS OF LONG ISLAND, INC." TO "COVANTA LONG ISLAND, INC.", FILED THE FOURTEENTH DAY OF MARCH, A. D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ----------------------------------------- Harriet Smith Windsor, Secretary of State 2275573 8100H AUTHENTICATION: 2951496 040135431 DATE: 02-25-04 EX-99.T3A19 18 exhibit_t3a-19.txt Exhibit T3A-19. Delaware -------------------------- Page 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA HENNEPIN ENERGY RESOURCE CO., LIMITED PARTNERSHIP" AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF LIMITED PARTNERSHIP, FILED THE FIFTEENTH DAY OF NOVEMBER, A.D. 1994, AT 1:55 O'CLOCK P.M. RESTATED CERTIFICATE, CHANGING ITS NAME FROM "HENNEPIN COUNTY ENERGY RESOURCE CO., L.P." TO "HENNEPIN ENERGY RESOURCE CO., LIMITED PARTNERSHIP", FILED THE THIRTIETH DAY OF MAY, A. D. 1986, AT 2:50 O'CLOCK P.M. RESTATED CERTIFICATE, FILED THE EIGHTEENTH DAY OF JANUARY, A.D. 1990, AT 10 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, FILED THE THIRD DAY OF JUNE, A. D. 1991, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, FILED THE EIGHTH DAY OF NOVEMBER, A.D. 2000, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "HENNEPIN ENERGY RESOURCE CO., LIMITED PARTNERSHIP" TO "COVANTA HENNEPIN /s/ Harriet Smith Windsor ----------------------------- Harriet Smith Windsor, Secretary of State 2048510 8100H AUTHENTICATION: 2949981 040133010 DATE: 02-24-04 1 Delaware -------------------------- Page 1 The First State ENERGY RESOURCE CO., LIMITED PARTNERSHIP", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED PARTNERSHIP. /s/ Harriet Smith Windsor ----------------------------- Harriet Smith Windsor, Secretary of State 2048510 8100H AUTHENTICATION: 2949981 040133010 DATE: 02-24-04 2 CERTIFICATE AND AGREEMENT OF LIMITED PARTNERSHIP OF HENNEPIN COUNTY ENERGY RESOURCE CO., L.P. THE UNDERSIGNED are executing this Certificate and Agreement of Limited Partnership (the "Certificate and Agreement") for the purpose of forming a limited partnership (the "Partnership") pursuant to the provisions of the Delaware Revised Uniform Limited Partnership Act, 6 Del. C. Sections 17-101 et seq. (the "Delaware Act"), and do hereby certify and agree as follows: 1. Name. The name of the Partnership shall be Hennepin County Energy Resource Co., L.P., or such other name as the General Partners may from time to time hereafter designate. 2. Definitions. In addition to terms otherwise defined herein, the following terms are used herein as defined below: "Event of withdrawal of a General Partner" means an event that causes a person or entity to cease to be a General Partner as provided in Section 17-402 of the Delaware Act. "General Partners" means the Initial General Partner and all other persons or entities admitted as General Partners pursuant to this Certificate and Agreement, so long as they remain General Partners. Reference to a "General Partner" means any one of the General Partners. "Initial General Partner" means Blount Energy Resource Corp. 3 "Initial Limited Partner" means Louis A. Griffin. "Limited Partners" means the Initial Limited Partner and all other persons or entities admitted as additional or substituted Limited Partners pursuant to this Certificate and Agreement, so long as they remain Limited Partners. Reference to a "Limited Partner" means any one of the Limited Partners. "Partners" means those persons or entities who from time to time are the General Partners and the Limited Partners. Reference to a "Partner" means any one of the Partners. 3. Purpose. The purpose of the Partnership shall be to engage in any lawful business which may be engaged in by a limited partnership organized under th' Delaware Act. 4. Offices. (a) The principal office of the Partnership, and such additional offices as the General Partners may determine to establish, shall be located at such place or places inside or outside the State of Delaware as the General Partners may designate from time to time. (b) The registered office of the Partnership in the State of Delaware is located at 1105 N. Market Street, P. O. Box 1347, Wilmington, New Castle County, Delaware 19899. The registered agent of the Partnership for service of process at such address is Delaware Corporation Organizers, Inc. 5. Partners. The name and business or residence address of each Partner of the Partnership, the General Partner(s) and the Limited Partner(s) being separately designated, are as set forth on Schedule I attached hereto. 4 6. Term. The term of the Partnership shall commence on the filing of this Certificate and Agreement in the Office of the Secretary of State of Delaware and shall continue until termination of the Partnership in accordance with Section 14 of this Certificate and Agreement. 7. Management of the Partnership. (a) The General Partners shall have the exclusive right to manage the business of the Partnership, and shall have all powers and rights necessary, appropriate or advisable to effectuate and carry out the purposes and business of the Partnership and, in general, all powers permitted to be exercised by a general partner under the laws of the State of Delaware. The General Partners may appoint, employ, or otherwise contract with any persons or entities for the transaction of the business of the Partnership or the performance of services for or on behalf of the Partnership, and the General Partners may delegate to any such person or entity such authority to act on behalf of the Partnership as the General Partners may from time to time deem appropriate. (b) Except as otherwise herein specifically provided, the duties and powers of the General Partners may be exercised by any one of the General Partners acting alone. (c) No Limited Partner, in his status as such, shall have the right to take part in the management or control of the business of the Partnership or to act for or bind the Partnership or otherwise to transact any business on behalf of the Partnership. 5 8. Capital Contributions. (a) The Initial General Partner and the Initial Limited Partner have each contributed Ten Dollars ($10.00) to the capital of the Partnership. The Initial General Partner and the Initial Limited Partner shall not be required to make any further contributions to the capital of the Partnership. Persons or entities hereafter admitted as General Partners or Limited Partners of the Partnership shall make such contributions of cash, property or services to the Partnership as shall be determined by the General Partners at the time of each such admission. 9. Assignments of Limited Partner Interest. No Limited Partner may sell, assign, pledge or otherwise transfer or encumber his interest in the Partnership nor shall any Limited Partner have the power to substitute an assignee in his place as a substituted Limited Partner without, in either event, having obtained the prior written consent of the General Partners. 10. Withdrawal. No Partner shall have the right to withdraw from the Partnership except with the consent of all of the General Partners and upon such terms and conditions as may be specifically agreed upon between the General Partners and the withdrawing Partner; provided, however, that the Initial General Partner shall have the right to withdraw following the admission of one or more additional General Partners; and provided, further, that the Initial Limited Partner shall have the right to withdraw following the admission of one or more additional Limited Partners. Upon the withdrawal of the Initial General 6 Partner and/or the Initial Limited Partner, or either of them, such Partners shall be entitled to receive a return of their respective capital contributions. The provisions hereof with respect to distributions upon withdrawal are exclusive and no Partner shall be entitled to claim any further or different distribution upon withdrawal under Section 17-604 of the Delaware Act or otherwise. 11. Additional Partners. The General Partners shall have the right to admit additional General Partners and additional Limited Partners upon such terms and conditions, at such time or times, and for such capital contributions as shall be determined by the General Partners. 12. Distributions. Except as provided in Section 10 hereof, no Partner has any right to receive distributions of cash or other property from the Partnership prior to dissolution. 13. Return of Capital. Except as provided in Section 10 hereof, no Partner has the right to receive, and the General Partners have absolute discretion to make, any distributions to a Partner which include a return of all or any part of such Partner's capital contribution, provided that upon the dissolution of the Partnership, the assets of the Partnership shall be distributed as provided in Section 17-804 of the Delaware Act. 14. Dissolution. Subject to the provisions of Section 15 of this Certificate and Agreement, the Partnership shall be dissolved and its affairs wound up and terminated upon the first to occur of the following: 7 (a) December 31, 2024; (b) The determination of all of the General Partners to dissolve the Partnership; or (c) The occurrence of an event of withdrawal of a General Partner or any other event causing a dissolution of the Partnership under Section 17-801 nf the Delaware Act. 15. Continuation of the Partnership. Notwithstanding the provisions of Section 14(c) hereof, the occurrence of an event of withdrawal of a General Partner shall not dissolve the Partnership if at such time there are one or more remaining General Partners and any one or more of such remaining General Partners continue the business of the Partnership (any and all such remaining General Partners being hereby authorized to continue the business of the Partnership without dissolution). If upon the occurrence of an event of withdrawal of a general partner there shall be no remaining General Partner, the Partnership nonetheless shall not be dissolved and shall not be required to be wound up if, within ninety (90) days after the occurrence of such event of withdrawal, all remaining Partners agree in writing to continue the business of the Partnership and to the appointment, effective as of the date of withdrawal, of one or more additional General Partners. 16. Amendments. This Certificate and Agreement may be amended only upon the written consent of all Partners. 8 IN WITNESS WHEREOF, the undersigned have duly executed this Certificate and Agreement as of November 13, 1984. Initial General Partner BLOUNT ENERGY RESOURCE CORP., a Delaware corporation By: /s/ ----------------------------- Its Vice President Initial Limited Partner /s/ Louis A. Griffin ------------------------------ Louis A. Griffin 9 SCHEDULE I A. General Partners
Name & Address Capital Contribution -------------- -------------------- Blount Energy Resource Corp. $10.00 4520 Executive Park Drive Montgomery, Alabama 36116-1602
B. Limited Partnership
Name & Address Capital Contribution -------------- -------------------- Louis A. Griffin $10.00 4520 Executive Park Drive Montgomery, Alabama 36116-1602
10 AMENDED AND RESTATED CERTIFICATE OF LIMITED PARTNERSHIP OF HENNEPIN COUNTY ENERGY RESOURCE CO., L.P. This Amended and Restated Certificate of Limited Partnership of Hennepin County Energy Resource Co., L.P., a Delaware limited partnership (the "Partnership"), is being executed of May 29, 1986 for the purpose of amending and restating in its entirety, as hereinafter set forth, the Certificate and Agreement of Limited Partnership of the Partnership (the "Certificate"), which Certificate was originally filed in the Office of the Secretary of State of the State of Delaware under the name of Hennepin County Energy Resource Co., L.P. on November 15, 1984. It is, therefore, certified that the Certificate is hereby amended and restated in its entirety as follows: 1. Name. The name of the Partnership is Hennepin Energy Resource Co., Limited Partnership. 2. Registered Office and Registered Agent. The registered office of the Partnership in the State of Delaware is located at 1105 Market Street, P.O. Box 1347, Wilmington, New Castle County, Delaware 19899. The name of the registered agent of the partnership for service of process at such address is Delaware Corporation Organizers, Inc. 3. Name and Address of the General Partner. The name and address of the General Partner of the Partnership is as follows Blount Energy Resource Corp. 4520 Executive Park Drive Montgomery, Alabama 36116-1602 4. Amended and Restated Certificate. This Amended and Restated Certificate has been duly executed and filed in accordance 11 with the provisions of Section 17-210 of the Delaware Revised Uniform Limited Partnership Act. 12 IN WITNESS WHEREOF, the undersigned has duly executed this Certificate as of the day and year first above written. General Partner BLOUNT ENERGY RESOURCE CORP., a Delaware corporation By /s/ Louis A. Griffin ------------------------------------- Louis A. Griffin Its Vice President 13 AMENDED AND RESTATED CERTIFICATE AND AGREEMENT OF LIMITED PARTNERSHIP OF HENNEPIN ENERGY RESOURCE CO., LIMITED WHEREAS, Blount Energy Resource Corp.("BERC"), as Initial General Partner, and Louis A. Griffin ("Griffin"), as Initial Limited Partner, formed Hennepin Energy Resource Co., Limited Partnership (the "Partnership"), a limited partnership organized under the Delaware Revised Uniform Limited Partnership Act (the "Delaware Act") for the general purpose of constructing, operating and retaining resource recovery facilities; and WHEREAS, BERC and Griffin each contributed at the initial capitalization of the Partnership the sum of Ten Dollars ($10.00); and WHEREAS, over the years, BERC has made substantial and continuing capital contributions to the Partnership, while Griffin has made none; and WHEREAS, as evidenced by their actions over the years, the oral agreement of the parties has always been that BERC, as Initial General Partner, would contribute such additional capital as was and is needed in connection with various projects in which the Partnership was and is involved, and that the parties hereto would share in the distributions, profits, losses and credits of the Partnership in accordance with their respective aggregate capital contributions to the Partnership; 14 NOW, THEREFORE, in order to clearly reflect by reducing to writing the prior and continuing oral agreement of the parties with respect to partnership allocations and distributions between them, and in order to further amend the Certificate and Agreement of Limited Partnership flied with the Office of the Secretary of State of Delaware on November 15, 1984, under the name Hennepin County Energy Resource Co., LP., (the "Certificate and Agreement") with respect to other matters, the parties hereto hereby amend and restate the Certificate and Agreement as follows. 1. Name. The name of the Partnership shall be Hennepin Energy Resource Co., Limited Partnership, or such other name as the General Partners may from time to time hereafter designate. 2. Definitions. In addition to terms otherwise defined herein, the following terms are used herein as defined below: "Event of withdrawal of a General Partner" means an event that causes a person or entity to cease to be a General Partner as provided in Section 17-402 of the Delaware Act. "General Partners" means the Initial General Partner and all other persons or entities admitted as General Partners pursuant to this Certificate and Agreement, so long as they remain General Partners. Reference to a "General Partner" means any one of the General Partners. "Initial General Partner" means Blount Energy Resource Corp. "Initial Limited Partner" means Louis A. Griffin. "Limited Partners" means the Initial Limited Partner 15 and all other persons or entities admitted as additional or substituted Limited Partners pursuant to this Certificate and Agreement, so long as they remain Limited Partners. Reference to a "Limited Partner" means any one of the Limited Partners. "Partners" means those persons or entities who from time to time are the General Partners and the Limited Partners. Reference to a "Partner" means any one of the Partners. 3. Purpose. The purpose of the Partnership shall be to engage in any lawful business which may be engaged in by a limited partnership organized under the Delaware Act. 4. Offices. (a) The principal office of the Partnership, and such additional offices as the General Partners may determine to establish, shall be located at such place or places inside or outside the State of Delaware as the General Partners may designate from time to time. (b) The registered office of the Partnership in the State of Delaware is located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The registered agent of the Partnership for service of process at such address is The Corporation Trust Company. 5. Partners. The name and business or residence address of each Partner of the Partnership, the General Partner(s) and the Limited Partner(s) being separately designated, are as set forth on Schedule I attached hereto. 16 6. Term. The term of the Partnership shall commence upon the filing of this Certificate and Agreement in the Office of the Secretary of State of Delaware and shall continue until termination of the Partnership in accordance with Section 14 of this Certificate and Agreement. 7. Management of the Partnership. (a) The General Partners shall have the exclusive right to manage the business of the Partnership, and shall have all powers and rights necessary, appropriate or advisable to effectuate and carry out the purposes and business of the Partnership and, in general, all powers permitted to be exercised by a general partner under the laws of the State of Delaware. The General Partners may appoint, employ, or otherwise contract with any persons or entities for the transaction of the business of the Partnership or the performance of services for or on behalf of the Partnership, and the General Partners may delegate to any such person or entity such authority to act on behalf of the Partnership as the General Partners may from time to time deem appropriate. (b) Except as otherwise herein specifically provided, the duties and powers of the General Partners may be exercised by any one of the General Partners acting alone. (c) No Limited Partner, in his status as such, shall have the right to take part in the management or control of the business of the Partnership or to act for or bind the Partnership or otherwise to transact any business on behalf of the Partnership. 8. Capital Contributions. The Initial General 17 Partner and the Initial Limited Partner have each contributed Ten Dollars ($10.00) to the capital of the Partnership. The Initial General Partner and the Initial Limited Partner shall not be required to make any further contributions to the capital of the Partnership. Persons or entities hereafter admitted as General Partners or Limited Partners of the Partnership shall make such contributions of cash, property or services to the Partnership as shall be determined by the General Partners at the time of each such admission. 8A. Partner Allocations and Distributive Share. (a) Profits and Losses. Except as provided in subsection (b) hereof, profits, losses and credits for any fiscal year shall be allocated among the Partners in proportion to their cumulative capital contributions to the Partnership, determined at the close of such fiscal year, provided that no allocation shall be made to the Initial Limited Partner which would create or increase a negative balance in such Initial Limited Partner's capital account. In the event an item of loss or deduction of the Partnership exceeds the aggregate capital accounts of all partners, One Hundred Percent (100%) of such item shall be allocated to the General Partners. (b) Tax Allocations: Code Section 704(c). In accordance with Code Section 704(c) of the Internal Revenue Code of 1986, as amended (the "Code") and the Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Partnership shall, solely for tax purposes, be allocated among the Partners so as to take account of any variation between the adjusted basis of such property to the Partnership for federal income tax purposes and 18 its initial gross asset value as determined by the contributing Partner and the Partnership. Any elections or other decisions relating to such allocations shall be made by the Partners in any manner that reasonably reflects the purpose and intention of this Certificate and Agreement. Allocations pursuant to this section 8A(b) are solely for purposes of federal, state and local taxes and shall not affect, or in any way be taken into account in computing, any Partner's capital account or share of profits, losses, other items, or distributions pursuant to any provisions of this Certificate and Agreement. 9. Assignments of Limited Partner Interest. No Limited Partner may sell, assign, pledge or otherwise transfer or encumber his interest in the Partnership nor shall any Limited Partner have the power to substitute an assignee in his place as a substituted Limited Partner without, in either event, having obtained the prior written consent of the General Partners. 10. Withdrawal. No Partner shall have the right to withdraw from the Partnership except with the consent of all of the General Partners and upon such terms and conditions as may be specifically agreed upon between the General Partners and the withdrawing Partner, provided, however, that the Initial General Partner shall have the right to withdraw following the admission to the Partnership of one or more additional General Partners; arid provided, further, that the Initial Limited Partner shall have the right to withdraw following the admission to the Partnership of one or more additional Limited Partners. Upon the withdrawal of the Initial General Partner, the Initial Limited Partner, or either of them, such Partners shall be entitled to receive a distribution equal to the positive 19 balance, if any, of their respective capital accounts, after giving full effect to all contributions, distributions, and allocations for all periods pursuant to this Certificate and Agreement. 11. Additional Partners. The General Partners shall have the right to admit additional General Partners and additional Limited Partners upon such terms and conditions, at such time or times, and for such capital contributions as shall be determined by the General Partners. 12. Distribution. Except as provided in Section 10 hereof, no Partner has any right to receive distributions of cash or other property from the Partnership prior to dissolution. 13. Return of Capital. Except as provided in Section 10 hereof, no Partner has the right to receive, and the General Partners have absolute discretion to make, any distributions to a Partner which include a return of all or any part of such Partner's capital contribution, provided that upon the dissolution of the Partnership, the assets of the Partnership shall be distributed as provided in Section 17-804 of the Delaware Act. 14. Dissolution. Subject to the provisions of Section 15 of this Certificate and Agreement, the Partnership shall be dissolved and its affairs wound up and terminated upon the first to occur of the following: (a) December 31, 2024; (b) The determination of all of the General Partners to dissolve the Partnership; or 20 (c) The occurrence of an event of withdrawal of a General Partner or any other event causing a dissolution of the Partnership under Section 17-80 1 of the Delaware Act. 15. Continuation of the Partnership. Notwithstanding the provisions of Section 14(c) hereof, the occurrence of an event of withdrawal of a General Partner shall not dissolve the Partnership if at such time there are one or more remaining General Partners and any one or more of such remaining General Partners continue the business of the Partnership (any and all such remaining General Partners being hereby authorized to continue the business of the Partnership without dissolution). If upon the occurrence of an event of withdrawal of a General Partner there shall be no remaining General Partner, the Partnership nonetheless shall not be dissolved and shall not be required to be wound up if, within ninety (90) days after the occurrence of such event of withdrawal, all remaining Partners agree in writing to continue the business of the Partnership and to the appointment, effective as of the date of withdrawal, of one or more additional General Partners. 21 16. Amendments. This Certificate and Agreement may be amended only upon the written consent of all Partners. IN WITNESS WHEREOF, this Amended and Restated Certificate and Agreement of Limited Partnership, which restates and integrates and also further amends the Certificate and Agreement of Limited Partnership as hereto amended or supplemented, has been duly executed by the undersigned as of the 15th day of January, 1990 and is being filed in accordance with Section 17-210 of the Delaware Act. Initial General Partner: BLOUNT ENERGY RESOURCE CORP., a Delaware corporation By /s/ ------------------------------------- Its Vice President Initial Limited Partner: /s/ Louis A. Griffin ------------------------------------- Louis A. Griffin 22 SCHEDULE I A. General Partners
Name & Address Capital Contribution -------------- -------------------- Blount Energy Resource Corp. $10.00 4520 Executive Park Drive Montgomery, Alabama 36116-1602
B. Limited Partnership
Name & Address Capital Contribution -------------- -------------------- Louis A. Griffin $10.00 4520 Executive Park Drive Montgomery, Alabama 36116-1602
23 CERTIFICATE OF AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND CERTIFICATE OF LIMITED PARTNERSHIP OF HENNEPIN ENERGY RESOURCE CO., LIMITED PARTNERSHIP It is hereby certified that: 1. The name of the limited partnership is Hennepin Energy Resource Co., Limited Partnership. 2. a. Article 4, Section (a) of the Amended and Restated Certificate and Agreement of Limited Partnership is hereby amended to read in full, as follows: "(a) The principal office of the Partnership is located at c/o Ogden Projects, Inc., ~40 Lane Road, Fairfield, New Jersey 07007-2615." b. Schedule 1 of the Amended and Restated Certificate and Agreement of Limited Partnership is hereby amended to read in full as follows: "SCHEDULE 1 The name and address of each partner is as follows: General Partner: Ogden Energy Resource Corp. c/o Ogden Projects, Inc. 40 Lane Road Fairfield, NJ 07007-2615 Limited Partner: OPWH, Inc. c/o Ogden Projects, Inc. 40 Lane Road Fairfield, NJ 07007-2615" 24 IN WITNESS WHEREOF, the undersigned has executed this Certificate in the name and on behalf of Ogden Energy Resource Corp. this 28TH day of May, 1991. OGDEN ENERGY RESOURCE CORP. (formerly Blount Energy Resource Corp.), General Partner By: /s/ William C. Mack ------------------------ William C. Mack, Executive Vice President and Secretary 25 CERTIFICATE OF AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP OF HENNEPIN ENERGY RBSOURCE CO., LIMITED PARTNERSHIP It is hereby certified that: FIRST: The name of the limited partnership (hereinafter called the "partnership") is HENNEPIN ENERGY RESOURCE CO., LIMITED PARTNERSHIP. SECOND: Pursuant to the provisions of Section 17-202, Title 6, Delaware Code, the amendment to the Certificate of Limited partnership effected by this Certificate of Amend-ment is to change the address of the registered office of the partnership in the State of Delaware to 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, and to change the name of the registered agent of the partnership in the State of Delaware at the said address to Corporation Service Company. The undersigned, a general partner of the partnership, executes this Certificate of Amendment on October 5, 2000. /s/ Jeffrey R. Horowitz -------------------------- Ogden Energy Resource Corp., its General Partner Jeffrey R. Horowitz Secretary 26 CERTIFICATE OF AMENDMENT TO CERTIFICATE OF LIMITED PARTNERSHIP OF HENNEPIN ENERGY RESOURCE CO., LIMITED PARTNERSHIP It is hereby certified that: FIRST: The name of the limited partnership (hereinafter called the "partnership") is Hennepin Energy Resource Co., Limited Partnership. SECOND: Pursuant to provisions of Section 17-202, Title 6, Delaware Code, the Certificate of Limited Partnership is amended as follows: FIRST: The name of the limited partnership (hereinafter called the "partnership") is Covanta Hennepin Energy Resource Co., Limited Partnership. The undersigned, a general partner of the partnership, executed this Certificate of Amendment on March 14, 2001. Ogden Energy Resource Corp. General Partner By: /s/ ------------------------- Name: 27 EX-99.T3A20 19 exhibit_t3a-20.txt Exhibit T3A-20 DEPARTMENT OF STATE I certify the attached is a true and correct copy of the Articles of incorporation, as amended to date, of COVANTA HILLSBOROUGH, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is H16487. Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Twenty-fifth day of February, 2004 /s/Glenda G. Hood Secretary of State 1 Exhibit T3A-20 STATE OF FLORIDA ARTICLES OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF HILLSBOROUGH, INC. THE UNDERSIGNED, ACTING AS INCORPORATORS OF A CORPORATION UNDER THE FLORIDA GENERAL CORPORATION ACT, ADOPT THE FOLLOWING ARTICLES OF INCORPORATION: FIRST: THE NAME OF THE CORPORATION IS OGDEN MARTIN SYSTEMS OF HILLSBOROUGH, INC. SECOND: THE PERIOD OF ITS DURATION IS PERPETUAL THIRD: THE DATE AND TIME OF THE COMMENCEMENT OF THE CORPORATE EXISTENCE IF OTHER THAN THE TIME OF FILING OR ARTICLES BY THE DEPARTMENT OF STATE IS FOURTH: THE PURPOSE OR PURPOSES FOR WHICH THE CORPORATION IS ORGANIZED ARE: TO ENGAGE IN THE TRANSACTION OF ANY OR ALL LAWFUL BUSINESS FOR WHICH CORPORATIONS MAY BE INCORPORATED UNDER THE PROVISIONS OF THE FLORIDA GENERAL CORPORATION ACT. FIFTH: THE AGGREGATE NUMBER OF SHARES WHICH THE CORPORATION SHALL HAVE AUTHORITY TO ISSUE IS: 100 COMMON AT $1.00 Par Value SIXTH: PROVISIONS GRANTING PREEMPTIVE RIGHTS ARE: NONE SEVENTH: PROVISIONS FOR THE REGULATION OF THE INTERNAL AFFAIRS OF THE CORPORATION ARE: NONE EIGHTH: THE STREET ADDRESS OF THE INITIAL REGISTERED OFFICE OF THE CORPORATION IS C/O C T CORPORATION SYSTEM, 8751 WEST BROWARD BLVD., CITY OF PLANTATION, FLORIDA 33324, AND THE NAME OF ITS INITIAL REGISTERED AGENT AT SUCH ADDRESS IS C T 2 Exhibit T3A-20 CORPORATION SYSTEM. NINTH: THE NUMBER OF DIRECTORS CONSTITUTING THE INITIAL BOARD OF DIRECTORS OF THE CORPORATION IS FOUR (4), AND THE NAMES AND ADDRESSES OF THE PERSONS WHO ARE TO SERVE AS DIRECTORS UNTIL THE FIRST ANNUAL MEETING OF SHAREHOLDERS OR UNTIL THEIR SUCCESSORS ARE ELECTED AND SHALL QUALIFY ARE: 1. Donald a. Krenz 277 Park Avenue, NY, NY 10172 2. Peter Thorner 277 Park Avenue, NY, NY 10172 3 Robert B. Curry, Jr. 277 Park Avenue, NY, NY 10172 4 David L. Sokol 277 Park Avenue, NY, NY 10172 TENTH: THE NAME AND ADDRESS OF EACH INCORPORATOR IS: Cynthia Forman 1633 Broadway, NY, NY 10019 Vicki Matsil 1633 Broadway, NY, NY 10019 Yvette Gerena 1633 Broadway, NY, NY 10019 Dated: August 13, 1984 /s/Cynthia Forman ----------------- /s/Vicki Matsil ----------------- /s/Yvette Gerena ----------------- 3 Exhibit T3A-20 STATE OF NEW YORK COUNTY OF NEW YORK THE FOREGOING INSTRUMENT WAS ACKNOWLEDGED BEFORE ME THIS 13TH DAY OF AUGUST, 1984, BY CYNTHIA FORMAN, VICKI MATSIL, YVETTE GERENA OR OGDEN MARTIN SYSTEMS OF HILLSBOROUGH, INC. (NAME OF CORPORATION) MY COMMISSION EXPIRES __________________________. /s/ Richard P. Borovoy ---------------------- NOTARY PUBLIC C T CORPORATION SYSTEM HAVING BEEN DESIGNATED TO ACT AS REGISTERED AGENT HEREBY AGREES TOA CT IN THIS CAPACITY. C T CORPORATION SYSTEM /s/ John L. Morrissey --------------------------- (NAME AND TITLE OF OFFICER) 4 ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF PASCO, INC. -------------------------------------------------------- (present name) Pursuant to the provisions of section 607.1006,Florida Statutes, this Florida profit corporation adopts the following articles of amendment to its articles of incorporation: FIRST: Amendment adopted; Article First is amended to read: First: The name of the Corporation is COYANTA PASCO, INC. SECOND: The date of the amendment's adoption is: 2/28/2001 THIRD: Adoption of Amendment: The amendment was approved by the shareholders. The number of votes cast for the amendment was sufficient for approval. Signed this 12th day of March, 2001 Signature /s/ Patricia Collins -------------------- EX-99.T3A21 20 exhibit_t3a-21.txt EXHIBIT T3A-21. DELAWARE PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA HUNTINGTON RESOURCE RECOVERY ONE CORP." AS RECEIVED AND FILED IN THIS OFFICE THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE FOURTEENTH DAY OF OCTOBER, A.D. 1987, AT 10 O'CLOCK AM. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "C -E HUNTINGTON RESOURCE RECOVERY ONE CORP." TO "OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY ONE CORP.", FILED THE SECOND DAY OF MAY, AD. 1990, AT 1:30 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY ONE CORP." TO "COVANTA HUNTINGTON RESOURCE RECOVERY ONE CORP.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK AM. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ------------------------------------- Harriet Smith Windsor, Secretary of State 2140602 8100H AUTHENTICATION: 2949990 040133019 DATE: 02-24-04 2 CERTIFICATE OF INCORPORATION OF C-E Huntington Resource Recovery One Corp. ***** 1. The name of the corporation is C-E Huntington Resource Recovery One Corp. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One thousand (1,000) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One thousand Dollars ($1,000). 5. The right to increase or decrease the amount of the authorized stock of any class or classes of stock is reserved by 3 the affirmative vote of the holders of a majority of the stock entitled to vote. 4 6A. The name and mailing address of each incorporator is as follows:
NAME MAILING ADDRESS ---- --------------- D.A. Hampton Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 L.J. Johnston Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 S.J. Queppet Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801
6B. The name and mailing address of each person, who is to serve as a director until the first annual meeting of the stockholders or until a successor is elected and qualified, is as follows:
NAME MAILING ADDRESS ---- --------------- C.E. Barnett Combustion Engineering, Inc. 900 Long Ridge Road Stanford, Conn. 06904 J.B. Kelly Combustion Engineering, Inc. 900 Long Ridge Road Stanford, Conn. 06904 W.M. Torrence Combustion Engineering, Inc. 1000 Prospect Hill Road Windsor, CT. 06095
7. The corporation is to have perpetual existence. 8. In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized: To make, alter or repeal the by-laws of the corporation. 5 9. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide. 6 Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the corporation. 10. The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is our act and deed and the facts herein stated are true, and accordingly have hereunto set our hands this 14th day of October , 1987. /s/ D.A. Hampton ------------------------------------- D.A. Hampton /s/ L.J. Johnston ------------------------------------- L.J. Johnston /s/ S.J. Queppet ------------------------------------- S.J. Queppet 7 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 02/06/1996 960035145 - 2140602 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that 1. The name of the corporation (hereinafter called the "corporation") is OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY ONE CORP. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15/1998 /s/ ----------------------------- Authorized Officer 8 DB BC D-:COA CERTIF OF CHANGE 4/91 9 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY ONE CORP. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY ONE CORP. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA HUNTINGTON RESOURCE RECOVERY ONE CORP. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ____, 2001. /s/ Patricia Collins ----------------------------- Name: Patricia Collins Title: Secretary 10 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/2001 010126522 -- 2140602 11 EX-99.T3A22 21 exhibit_t3a-22.txt Exhibit T3A-22. Delaware The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA HUNTINGTON RESOURCE SEVEN CORP." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE FIRST DAY OF OCTOBER, A.D. 1991, AT 4 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY SEVEN CORP." TO "COVANTA HUNTINGTON RESOURCE SEVEN CORP.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. SEAL /s/ Harriet Smith Windsor ----------------------------------------- Harriet Smith Windsor, Secretary of State 2275119 8100H AUTHENTICATION: 2949993 040133023 DATE: 02-24-04 1 CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY SEVEN CORP. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of Delaware, does hereby certify: FIRST: The name of the Corporation is Ogden Martin Systems of Huntington Resource Recovery Seven Corp. SECOND: The address of the Corporation's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 in the County of New Castle and the name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which a corporation may be organized 2 under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is ONE THOUSAND FIVE HUNDRED (1,500), which shares shall be of one class, shall be designated Common Stock and shall have no par value. FIFTH: The name and mailing address of the incorporator is: Frank C. Shaw Nixon, Hargrave, Devans & Doyle One Thomas Circle, N.W. Suite 800 Washington, D.C. 20005 SIXTH: For the management of the business and for the conduct of the affairs of the Corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders, it is further provided that 1. The election of the directors of the Corporation need not be by written ballot unless the Bylaws so require; and 3 2. In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized to make, alter or repeal the Bylaws of the Corporation. SEVENTH: So director of the Corporation shall be held personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty in his capacity as a director, provided that liability shall not be eliminated or limited (1) for a breach of the director's duty of loyalty to the Corporation or its stockholders, or (2) for acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law, or (3) for any transaction from which the director derived an improper personal benefit, or (4) for acts in violation of Section 174 of the General Corporation Law. Any repeal or amendment of this Article, insofar as it would in any way enlarge the liability of any director of the Corporation, shall be ineffective with respect to any acts of omissions occurring prior to the date of such repeal or amendment. 4 IN WITNESS WHEREOF, the undersigned has executed this Certificate of Incorporation on October 1, 1991. /s/ F.C. Shaw ------------------------------- Frank C. Shaw, Incorporator 5 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY SEVEN CORP. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the Stale of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15, 19____ Jeffrey R. Horowitz -------------------------------- Authorized Officer 6 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY SEVEN CORP. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY SEVEN CORP. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA HUNTINGTON RESOURCE RECOVERY SEVEN CORP. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ___, 2001. Patricia Collins --------------------------- Name: Patricia Collins Title: Asst. Secretary 7 EX-99.T3A23 22 exhibit_t3a-23.txt Exhibit T3A-23 CERTIFICATION OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF HUNTSVILLE, INC. STATE OF ALABAMA MONTGOMERY COUNTY I, the undersigned Walker Hobbie, Jr., Judge of Probate of Montgomery County, Alabama hereby certify that the Certificate of Incorporation of Ogden Martin Systems of Huntsville, Inc. has this day been filed for record in the Probate Court of Montgomery County, Alabama; and that the Certificate of Incorporation has been recorded in compliance of Title l0-2A--92 of the Code Of Alabama, and that the incorporators of said corporation, their successors and assigns, constitute a body corporate under the name set forth in said certificate, namely: Ogden Martin Systems of Huntsville, Inc. IN WITNESS WHEREOF, I, the said Walker Hobbie, Jr., as Judge Of Probate of Montgomery County, Alabama, hereunto set my name and affix my seal of said Probate on this the 4th day of April, 1988. ________________________________ WALKER HOBBIE, JR. JUDGE OF PROBATE MONTGOMERY COUNTY, ALABAMA 1 Exhibit T3A-23 ARTICLES OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF HUNTSVILLE,. INC. The undersigned, acting as incorporator(s) of a corporation under the Alabama Business Corporation Act, adopt(s) the following Articles of Incorporation for such corporation: FIRST: The name of the corporation is Ogden Martin Systems of Huntsville, Inc. SECOND: The period of its duration is perpetual (May be perpetual) THIRD: The purpose or purposes for which the corporation Is organized include: The transaction of any or all lawful business for which corporations may be incorporated under the Alabama Business Corporation Act. Development, design, engineering and construction projects as well as related activities permitted under the laws of Alabama. FOURTH: The aggregate number of shares which the corporation shall have authority to issue is One Hundred (100) FIFTH: Provisions for the regulation of the internal affairs of the corporation are: N/A SIXTH: The location and mailing address of the initial registered office of the corporation is 60 Commerce Street, Montgomery, Alabama 36103 and the name of its initial registered agent at such address is The Corporation Company. SEVENTH: The number of directors constituting the initial board of directors of the corporation is Four (4), and the names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders or until their successors are elected and shall qualify are: Name Address 2 Exhibit T3A-23 David L. Sokol 40 Lane Road, Fairfield, NJ 07006 Albert O. Cornelison, Jr. Two Pennsylvania Plaza, New York, NY 10121 Robert M. DiGia Two Pennsylvania Plaza, New York, NY 10121 Salvatore S. Ferrara Two Pennsylvania Plaza, New York, NY 10121 EIGHTH: The name and address of each incorporator is: Name Address Joan Brunson 1633 Broadway, N.Y., NY. 10019 Maryanne R. Behan 1633 Broadway, N.Y., N.Y. 10019 Giovanna Decandia 1631 Broadway, N.Y., N.Y. 10019 Dated: March 30, l988 _____________________________________ Joan Brunson _____________________________________ Maryanne R. Behan _____________________________________ Giovanna DeCandia Incorporators The State of Alabama } Montgomery County } Probate Court I, Walker Hobbie, Jr., Judge of Probate in and for the said County, in said State, hereby certify that the within and foregoing pages are a full, true and complete copy of Articles of Incorporation of Ogden Martin Systems of Huntsville. Inc. as fully and completely as the same appears of record in this office in Book No. 0154 of Corporation at page 0148. Given under my hand and official seal this 8th day of April, A.D.1988 /s/ Walker Hobbie, Jr. ------------------------------------------- Judge of Probate Court, Montgomery County, Alabama 3 Exhibit T3A-23 STATE OF ALABAMA For-Profit Corporation Articles of Amendment to Articles of Incorporation Guidelines Instructions STEP 1: IF CHANGING THE CORPORATION'S NAME, CONTACT THE OFFICE OF THE SECRETARY OF STATE AT (334) 242-5324 TO RESERVE A CORPORATE NAME. STEP 2: FILE THE ORIGINAL AND TWO COPIES IN THE COUNTY WHERE THE ORIGINAL ARTICLES OF INCORPORATION ARE FILED. (IF THE AMENDMENT CHANGES THE NAME, THE CERTIFICATE OF NAME RESERVATION MUST BE: ATTACHED.) IF CHANGING THE NAME, THE SECRETARY OF STATE'S FILING FEE IS $20. THE SECRETARY OF STATE'S AMENDMENTS IS $10. THE JUDGE OF PROBATES FILING FEE FOR AN AMENDMENT IS $10. PURSUANT TO TILE PROVISIONS OF THE ALABAMA BUSINESS CORPORATION ACT, THE UNDERSIGNED HEREBY ADOPTS THE FOLLOWING ARTICLES OF AMENDMENT Article I The name of the corporation: Ogden Martin Systems of Huntsville, Inc. Article II The following amendment was adopted in the manner provided for by the Alabama Business Corporation Act: Article First of the Certificate of Incorporation be amended as follows: "First: the name of the corporation is COVANTA HUNTSVILLE, INC." Article III The amendment was adopted by the shareholders or directors in the manner prescribed by law on February 28, 2001. Article IV The number of shares outstanding at the time of the adoption was 100; the number of shares entitled to vote thereon was 100 If the shares of any class are entitled to vote thereon as a class, list the designation and number of outstanding shares entitled to vote thereon of each such class: Article V The number of shares voted for the amendment was 100 and the number of shares voted against such amendment was 0. (If no shares have been issued attach a written statement to that effect.) Date: March 12, 2001 /s/ Patricia Collins Asst. Secretary ------------------------------------------------ Type or Print Corporate Officer's Name and Title Date: ___________________ s/ Patricia Collins Asst. Secretary ------------------------------------------------ Signature of Officer The foregoing document was prepared by: Name of Individual: Address of Individual: 4 Exhibit T3A-23 STATE OF ALABAMA STATEMENT O CHANGE OF REGISTERED AGENT OR REGISTERED OFFICE OR BOTH CHECK ONE: ____ FOREIGN CORPORATION X DOMESTIC PROFIT CORPORATION PURSUANT TO THE PROVISIONS OF THE ALABAMA BUSINESS CORPORATION ACT, THE UNDERSIGNED CORPORATION SUBMITS THE FOLLOWING STATEMENT FOR THE PURPOSE OF CHANGING ITS REGISTERED AGENT, ITS REGISERED OFFICE, OR BOTH IN THE STATE OF ALABAMA. STATE OF INCORPORATION: ALABAMA 1. The name of the corporation: Ogden Martin Systems of Huntsville, Inc. 2. The name of the present registered agent: The Corporation Company 3. The street address of the present registered office: 60 Commerce Street, Montgomery, AL 36103 4. The name of its successor registered agent: The Prentice-Hall Corporation System, Inc. 5. The street address to which its registered office is to be changed (street address of registered agent and registered office must be identical; NO PO BOX): c/o The Prentice Hall Corporation System, Inc. 57 Adams Avenue, Montgomery, Alabama 36104 6. If you are changing the street address of the registered gent, you are required to notify the corporation in writing of the change in the registered agent's address. 7. Date:1/25/96 OGDEN MARTIN SYSTEMS OF HUNTSVILLE, INC. ________________________________________________ Name of Corporation Jeffrey R. Horowitz - Secretary ------------------------------------------------ Type or Print Corporate Officer's Name and Title 5 Exhibit T3A-23 /s/ Jeffrey R. Horowitz ----------------------------------------------- Signature of Officer I, THE PRENTICE-HALL CORPORATION SYSTEM, INC., consent to serve as registered agent to the above named corporation on this, 8th day of February, 1996 /s/ Vicki Schreiber -------------------------------------- Signature of Registered Agent Vicki Schreiber Asst. Vice President 6 EX-99.T3A24 23 exhibit_t3a-24.txt Exhibit T3A-24. Delaware PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA HYDRO ENERGY, INC."AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-SIXTH DAY OF NOVEMBER, A.D. 1990, AT 4:30 O'CLOCK P.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "ERCE HYDRO, INC." TO "OGDEN HYDRO ENERGY, INC.", FILED THE THIRTIETH DAY OF DECEMBER, A.D. 1991, AT 9 O'CLOCK A.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTY-FIRST DAY OF JANUARY, A.D. 1993, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN HYDRO ENERGY, INC." TO "COVANTA HYDRO ENERGY, INC.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. Seal /s/ Harriet Smith Windsor ------------------------- Harriet Smith Windsor, Secretary of State 2247463-8100H AUTHENTICATION: 2949998 040133025 DATE: 02-24-04 CERTIFICATE OF INCORPORATION OF ERCE HYDRO, INC. 1. The name of the corporation is: ERCE HYDRO, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Thousand Five Hundred (1,500) all of such shares shall be without par value. 5. The board of directors Is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: M. C. Kinnamon Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my band this 26th day of November, 1990. /s/ M.C. Kinnamon ----------------- M.C. Kinnamon AMENDMENT OF CERTIFICATE OF INCORPORATION OF ERCE HYDRO, INC. ERCE Hydro, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: The amendment to the Corporation's Certificate of Incorporation set forth in the following resolution approved by the Corporation's Board of Directors and stockholder was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware: That the Corporation amend its Certificate of Incorporation as follows: 1. The name of the Corporation is: Ogden Hydro Energy, Inc. IN WITNESS WHEREOF, ERCE Hydro, Inc. has caused this Amendment to be signed and attested by its duly authorized officers, this first day of January 1992. ERCE HYDRO, INC. /s/ J. Mark Elliot ------------------ President ATTEST: /s/ Sharon G. Province ---------------------- Secretary CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN HYDRO ENERGY, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 32 Loockerman Square, Suite L-100, City of Dover 19901, County of Kent. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on Jan 11, 1993. /s/ Peter Allen --------------- Vice President Attest: /s/ J. L. Effinger --------------------------- Asst. Secretary CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN HYDRO ENERGY, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN HYDRO ENERGY, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA HYDRO ENERGY, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ---- , 2001. /s/ Patricia Collins -------------------- Name: Patricia Collins Title: Asst. Secretary EX-99.T3A25 24 exhibit_t3a-25.txt Exhibit T3A-25. Delaware PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA HYDRO OPERATIONS WEST, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-SEVENTH DAY OF JULY, A.D. 2000, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN HYDRO OPERATIONS WEST, INC." TO "COVANTA HYDRO OPERATIONS WEST, INC.", FILED THE FOURTEENTH DAY OF MARCH, A. D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ------------------------- Harriet Smith Windsor, Secretary of State 3266488 8100H AUTHENTICATION: 2949999 040133029 DATE: 02-24-04 CERTIFICATE OF INCORPORATION OF OGDEN HYDRO OPERATIONS WEST, INC. FIRST. The name of this corporation shall be: OGDEN HYDRO OPERATIONS WEST, INC. SECOND. Its registered office in the State of Delaware is to be located at 1013 Centre Road, in the City of Wilmington, County of New Castle and its registered agent at such address is CORPORATION SERVICE COMPANY. THIRD. The purpose or purposes of the corporation shall be: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH. The total number of shares of stock which this corporation is authorized to issue is: One Hundred (100) Shares Of Common Stock At $1.00 Par Value. FIFTH. The name and address of the incorporator is as follows: Ken Scarborough Corporation Service Company Ken Scarborough Corporation Service Company 1013 Centre Road Wilmington, DE 19805 SIXTH. The Board of Directors shall have the power to adopt, amend or repeal the by-laws. SEVENTH. No director shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director. Notwithstanding the foregoing sentence, a director shall be liable to the extent provided by applicable law, (i) for breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this Article Seventh shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. IN WITNESS WHEREOF, the undersigned, being the incorporator hereinbefore named, has executed, signed and acknowledged this certificate of incorporation this 27th day of July, A.D., 2000. /s/ Ken Scarborough Ken Scarborough Incorporator khs CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN HYDRO OPERATIONS WEST, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN HYDRO OPERATIONS WEST, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA HYDRO OPERATIONS WEST, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ____, 2001. /s/Patricia Collins Name: Patricia Collins Title: Ass. Secretary EX-99.T3A26 25 exhibit_t3a-26.txt Exhibit T3A-26. MCI CONSULTING ENGINEERS, INC. The undersigned natural person or persons, having the capacity to contract and acting as incorporator or incorporators of a corporation under the Tennessee Business Corporation Act, adopt the following Charger for such corporation: ONE: The name of the corporation is MCI Consulting Engineers, Inc. TWO: The principal office of the corporation in the State of Tennessee is at 3325 Perimeter Hill Drive, Nashville, TN 37211 in the County of Davidson, TN. The registered agent at this address is Kenneth L Faulk. THREE: The corporation shall have perpetual existence. FOUR: The corporation is for profit. FIVE: The purposes for which this corporation is organized are: (a) To engage in a general consulting engineering-geological business and in the general practice of geology in all of its branches, and in that capacity to make, conduct and supervise research, surveys, investigations and constructions into all matter and things in the fields of such science and technology. (b) To do generally all and every other thing necessary and incident to the objects and powers herein granted and to transact any and all other businesses and perform any and all services generally incidental to or connected with any of the foregoing purposes. SIX: The total number of shares which this corporation is authorized to issue is ONE HUNDRED (100) shares of Common Stock with no par value. SEVEN: The minimum amount of capital with which the corporation will commence business is ONE THOUSAND DOLLARS ($1,000.00). EIGHT: The shareholders and Board of Directors of said corporation may act by written consent pursuant to the 1 provisions of Tennessee Code Annotated, Section 48-1402; and the Board of Directors may act by resolution pursuant to the provisions of Tennessee Code Annotated, Section 48-8 10. 2 NINE: The name and address of each incorporator is: Charles S. Higgins, 4245 Jamesborough, Nashville, TN 37215. This Charter to be effective as of December 31, 1989. DATE: November 5, 1989 /s/ Charles S. Higgins, Jr. ------------------------------------- Charles S. Higgins, Jr. - Incorporator STATE OF TENNESSEE COUNTY OF DAVIDSON Personally appeared before me, Sharlon Lynn Gibbs, a Notary Public in and for said State and County, the within named Charles S. Higgins, Jr., the Incorporator, with whom I am personally acquainted and acknowledged that he executed the foregoing application for a Charter of Incorporation for the purposes therein contained and expressed. WITNESS my hand and official seal at Franklin, TN, this the 18th day of December, 1989. /s/Sharlon Lynn Gibbs --------------------------- Notary Public My Commission expires: July 18, 1992 3 ARTICLES OF AMENDMENT TO THE CHARTER OF MCI Consulting Engineers, Inc. Pursuant to the provisions of Section 48-20-106 of the Tennessee Business Corporation Act, the undersigned corporation adopts the following articles of amendment to its charter: 1. The name of the corporation is MCI Consulting Engineers, Inc. 2. The text of each amendment adopted is: "ONE : The name of the corporation is ERCE Hydro Services Corporation. 3. The corporation is a for-profit corporation. 4. The manner (if not set forth in the amendment) for implementation of any exchange, reclassification, or cancellation of issued shares is as follows: 5. The amendment was duly adopted on November 29, 1990 by (the shareholders). [NOTE: Please strike the choices which do not apply to this amendment.] 6. If the amendment is not to be effective when these articles are filed by the Secretary of State, the date/time it will be effective is November 29, 1990 (date) 5 p.m. (time), [NOTE: The delayed effective date shall not be later than the 90th day after the date this document is filed by the Secretary of State.] November 28, 1990 MCI Consulting Engineers, Inc. Signature Date Name of Corporation Secretary /s/ Sharon G. Province ______________________ ___________________ Signature Signer's Capacity 4 Sharon G. Province ---------------------------- Name (typed or printed) 5 EX-99.T3A27 26 exhibit_t3a-27.txt Exhibit T3A-27. STATE OF CALIFORNIA SECRETARY OF STATE I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 4 page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this day of Feb 26 2004. /s/ Kevin Shelley -------------------------------- Secretary of State 1 Exhibit T3A-27. ARTICLES OF INCORPORATION OF IMPERIAL POWER SERVICES, INC. FIRST: The name of the corporation is Imperial Power Services, Inc. SECOND: The purpose of the corporation is to engage in any lawful activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business, or the practice of a profession permitted to be incorporated by the California Corporations Code. THIRD: The name and address in the State of California of the corporation's initial agent for service of process are David L. Parkinson, 3211 Fifth Avenue, San Diego, California. FOURTH: The total number of shares which the corporation is authorized to issue is 10,000 all of the same class, designated "Common Stock". This Article Fourth can be amended only with the vote or written consent of the holders of sixty (60) per cent of the outstanding shares. FIFTH: a. The number of Directors of the corporation is three (3). b. The names and addresses of the persons who are appointed as first Directors are:
Name ADDRESS David L. Parkinson 14946 Rancho Antiguo Del Mar, California 92014 William R. Eldredge 2163 Blackmore Court San Diego, California 92109 Willard E. Johnson 1341 Plum Street San Diego, California 92106
/s/ David L. Parkinson ------------------------------- David L. Parkinson 2 Exhibit T3A-27. /s/ William R. Eldredge -------------------------------- William R. Eldredge /s/ Willard E. Johnson -------------------------------- Willard E. Johnson STATE OF CALIFORNIA) ) ss. COUNTY OF SAN DIEGO) On this 11th day of December, before me, a Notary Public in and for said County and State, residing therein and duly commissioned and sworn, personally appeared DAVID L. PARKINSON, WILLIAM R. ELDREDGE, and WILLARD E. JOHNSON, known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same. /s/ Margaret Warrena Wallace -------------------------------- Margaret Warrena Wallace 3 Exhibit T3A-27. CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION FOR IMPERIAL POWER SERVICES, INC. FRANCIS L. ENOS and SHARON G. PROVINCE certify: 1. That they are the President and the Secretary, respectively, of Imperial Power Services, Inc. a California corporation. 2. That the Board of Directors approved an amendment to the Articles Of Incorporation stating that Article FIFTH is amended to read as follows: "FIFTH: a. The number of Directors of the corporation is four (4). b. The names and addresses of the persons who are appointed as first Directors are:
Name ADDRESS David L. Parkinson 14946 Rancho Antiguo Del Mar, California 92014 William R. Eldredge 2163 Blackmore Court San Diego, California 92109 Willard E. Johnson 1341 Plum Street San Diego, California 92106
3. The amendment herein set forth has been duly approved by written consent of the shareholders holding a majority of the outstanding shares. The Corporation has only one class of shares and the number of outstanding shares is 1,000. /s/ Francis L. Enos ------------------------------- FRANCIS L. ENOS, PRESIDENT /s/ Sharon G. Province ------------------------------- SHARON G. PROVINCE, SECRETARY 4 Exhibit T3A-27. VERIFICATION The undersigned, Francis L. Enos and Sharon C. Province the President and Secretary, respectively, of Imperial Power Services, Inc., each declares under penalty of perjury that the matters set out in the foregoing Certificate are true of his own and her own knowledge. Executed at San Diego, California on July 16. 1985. /s/ Francis L. Enos ------------------------------- FRANCIS L. ENOS, PRESIDENT /s/ Sharon G. Province -------------------------------- SHARON G. PROVINCE, SECRETARY 5 Exhibit T3A-27. CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION The undersigned certify that 1. They are the president and asst. secretary, respectively, of IMPERIAL POWER SERVICES, INC., a California corporation. 2. Article one of the Articles of Incorporation of this corporation is amended to read as follows: First: The name of the Corporation is COVANTA IMPERIAL POWER SERVICES, INC. 3 The foregoing amendment of Articles of Incorporation has been duly approved by the board of directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902, California Corporations Code. The total number of outstanding shares of the corporation is 1,000. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. DATE: March 12, 2001 /s/ Paul Clements -------------------------------------- Paul Clements, President /s/ Patricia Collins -------------------------------------- Patricia Collins, Assist. Secretary 6 EX-99.T3A28 27 exhibit_t3a-28.txt Exhibit T3a-28 UNITED STATES OF AMERICA THE STATE OF MICHIGAN Michigan Department of Consumer and Industry Services Lansing, Michigan This is to Certify that the annexed copy has been compared by me with the record on file in this Department and that the same is a true copy thereof. This certificate is in due form, made by me as the proper officer, and is entitled to have full faith and credit given it in every court and office within the United States. In testimony whereof, I have hereunto set my hand, in the City of Lansing, this 26th day of February, 2004 /s/ Andrew L. Metcalf, Jr., Director Bureau of Commercial Services GOLD SEAL APPEARS ONLY ON ORIGINAL MICHIGAN DEPARTMENT OF COMMERCE-- CORPORATION AND SECURITIES BUREAU (FOR BUREAU USE ONLY) EFFECTIVE DATE: Sep 19 1986 CORPORATION IDENTIFICATION NUMBER: 198-201 ARTICLES OF INCORPORATION For use by Domestic Profit Corporations (Please read instructions and Paperwork Reduction Act notice on last page) Pursuant to the provisions of Act 284, Public Acts of 1972, as amended, the undersigned corporation executes the following Articles: Article I The name of the corporation is: OGDEN MARTIN SYSTEMS OF KENT, INC. Article II The purpose or purposes for which the corporation is organized is to engage in any activity within the purposes for which corporations may be organized under the Business Corporation Act of Michigan. To engage in any activity within the purposes for which corporations may be organized under the Business Corporation Act of Michigan Article III The total authorized capital stock is: 1. Common Shares one hundred (100) Par Value Per Share $1.00 Preferred Shares Par Value Per Share $_____ and/or shares without par value as follows: 2. Common Shares one hundred (100) Stated Value Per Share $_____ Preferred Shares Stated Value Per Share $_____ 3. A statement of all or any of the relative rights, preferences and limitations of the shares of each class as follows: GOLD SEAL APPEARS ONLY ON ORIGINAL Article IV 1. The address of the registered office is: c/o THE CORPORATION COMPANY 615 Griswold Street, Detroit, Michigan 48226 (Street Address) (City) (ZIP Code) 2. The mailing address of the registered office if different from above: , Michigan -------------------------------------------- --------------------- (P.O.Box) (City) (ZIP Code) 3. The name of the resident agent at the registered office is: THE CORPORATION COMPANY Article V The name(s) and address(es) of the incorporator(s) is (are) as follows: Name Residence or Business Address Michael B. Schiaparelli 1633 Broadway, New York, New York 10019 Guy M. Bowman 1633 Broadway, New York, NewYork 10019 Karen Kojalowicz 1633 Broadway, NewYork, NewYork10019 (Optional. Delete If not applicable) (Optional. Delete If not applicable) GOLD SEAL APPEARS ONLY ON ORIGINAL Use space below for additional Articles or for continuation of previous Articles. Please identify any Article being continued or added. Attach additional pages if needed. I (We), the incorporator(s) sign my (our) name(s) this 18 day of September, 1986. /s/ Michael B. Schiaparelli Michael B. Schiaparelli /s/ Guy M. Bowman Guy M. Bowman /s/ Karen Kojalowicz Karen Kojalowicz (MICH. - 179) GOLD SEAL APPEARS ONLY ON ORIGINAL DOCUMENT WILL BE RETURNED TO NAME AND MAILING ADDRESS INDICATED IN THE BOX Name of person or organization BELOW. Include name, street and number remitting fees: (or P.O. box), city, state and ZIP code. C T Corporation System Michael B. Schiaparelli Preparer's name and business c/o C T Corporation System telephone number: 1633 Broadway, New York, NY 10019 Michael B. Schiaparelli (212) 664-1666 INFORMATION AND INSTRUCTIONS 1. This form is issued under the authority of Act 284, P.A. of 1972, as amended. The articles of incorporation cannot be filed until this form, or a comparable document, is submitted. 2. Submit one original copy of this document. Upon filing, a microfilm copy will be prepared for the records of the Corporation and Securities Bureau. The original copy will be returned to the address appearing in the box above as evidence of filing. Since this document must be microfilmed, it is important that the filing be legible. Documents with poor black and white contrast, or otherwise illegible, will be rejected. 3. This document is to be used pursuant to the provisions of Act 284, P.A. of 1972, by one or more persons for the purpose of forming a domestic profit corporation. 4. Article I -- The corporate name of a domestic profit corporation is required to contain one of the following words or abbreviations: "Corporation", "Company", "Incorporated", "Limited", "Corp.", "Co.", "lnc.", or Ltd.". 5. Article II -- State, in general terms, the character of the particular business to be carried on. Under section 202(b) of the Act, it is sufficient to state substantially, alone or without specifically enumerated purposes, that the corporation may engage in any activity within the purposes for which corporations may be organized under the Act. The Act requires, however, that educational corporations state their specific purposes. 6. Article III (2) -- The Act requires the incorporators of a domestic corporation having shares without par value to submit in writing the amount of consideration proposed to be received for each share which shall be allocated to stated capital. Such stated value may be indicated either in item 2 of article III or in a written statement accompanying the articles of incorporation. 7. Article IV -- A post office box may not be designated as the address of the registered office. The mailing address may differ from the address of the registered office only if a post office box address in the same city as the registered office is designated as the mailing address. 8. Article V -- The Act requires one or more incorporators. The address(es) should include a street number and name (or other designation), city and state. 9. The duration of the corporation should be stated in the articles only if the duration is not perpetual. 10. This document is effective on the date approved and filed by the Bureau. A later effective date, no more than 90 days after the date of delivery, may be stated as an additional article. 11. The articles must be signed in ink by each incorporator. The names of the incorporators as set out in article V should correspond with the signatures. 12. FEES: Filing fee $10.00 Franchise fee--1/2 mill (.0005) on each dollar of authorized capital stock, with a minimum franchise fee of $25.00 Total minimum fees (Make remittance payable to State of Michigan) $35.00 13. Mail form and fee to: Michigan Department of Commerce, Corporation and Securities Bureau, Corporation Division, P.O. Box 30054, Lansing, Ml 48909, Telephone: (517) 373-0493 GOLD SEAL APPEARS ONLY ON ORIGINAL CT System May 5, 1993 CT Corporation System Thomas Pierson, Deputy Director 1633 Broadway Michigan Department of Commerce New York, NY 10019 Corporation & Security Bureau 212 246-5070 6546 Mercantile Way Lansing, Michigan 48909 RE: CHANGE OF REGISTERED OFFICE ADDRESS Dear Mr. Pierson, This letter is to certify that The Corporation Company has changed its address from: 615 Griswold Street, Detroit, Michigan 48226 to: 30600 Telegraph Road, Bingham Farms, Michigan 48025. We will notify all active corporations for which The Corporation Company is the resident agent of this change of address. Enclosed is our check for $52,000.00 to cover the filing fee for the 10,294 active profit and non-profit corporations for which your records indicate The Corporation Company is agent. This payment will include the fee for providing us with an alphabetical listing of the names of all the corporations for which the registered office has been changed. Also included in this payment is the fee for a clean-up list which we will request within 30 days of the filing. Please confirm in writing the date that this change was effectuated on your records. Thank you in advance for your cooperation in this matter. Very truly yours, /s/ Kenneth J. Uva ------------------ Kenneth J. Uva Vice President KJU:mh encl. Sworn before me this 5th day of May, 1993. GOLD SEAL APPEARS ONLY ON ORIGINAL A LOCAL OFFICE 375 HUDSON STREET 800-221-0770 TO KNOW YOU BETTER. 11TH FLOOR A NATIONWIDE NETWORK NEW YORK, NY 10014-3660 TO SERVE YOU BETTER. 212-463-2700 CSC networks February 6, 1996 PRENTICE HALL LEGAL & FINANCIAL SERVICES Ms. Ann Baker Michigan Department of Commerce Corporation & Securities Bureau 6546 Mercantile Way Lansing, MI 48911 RE: Change of Registered Office Address Dear Ms. Baker: This letter is to certify that The Prentice-Hall Corporation System, Inc. has changed its address in Michigan from: 501 South Capitol Avenue, Lansing, Michigan 48933 to: 601 Abbott Road East Lansing, MI 48823 We are notifying all of the active corporations and limited liability companies for which The Prentice-Hall Corporation System, Inc. acts as resident agent of this change of address. We would appreciate it if you would update your records. We have previously sent you a check in the amount of $13,405 to cover the filing fee for the 2,648 corporation and 33 limited liability companies for which your records indicate that The Prentice-Hall Corporation System, Inc., acts as agent. Please provide us with an alphabetical listing of the names of all the corporations and limited liability companies for which the registered office has been changed and the date the change was filed. Your kind assistance in this matter is greatly appreciated. THE PRENTICE HALL-CORPORATION SYSTEM, INC. /s/ William G. Popeo William G. Popeo Vice President Sworn before me this 6th day of February 1996 GOLD SEAL APPEARS ONLY ON ORIGINAL MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU Date Received (FOR BUREAU USE ONLY) FEB 12 1996 Name Prentice-Hall Legal & Financial Services Address 375 Hudson Street, 11th Floor City State Zip Code New York NY 10014 EFFECTIVE DATE: DOCUMENT WILL BE RETURNED TO NAME AND ADDRESS INDICATED ABOVE CERTIFICATE OF CHANGE OF REGISTERED OFFICE AND/OR CHANGE OF RESIDENT AGENT For use by Domestic and Foreign Corporations (Please read information and instructions on reverse side) Pursuant to the provisions of Act 284, Public Acts of 1972 (profit corporations) or Act 162, Public Acts of 1982 (nonprofit corporations), the undersigned corporation executes the following Certificate: 1. The name of the corporation is: OGDEN MARTIN SYSTEMS OF KENT, INC. 2. The corporation identification number (CID) assigned by the Bureau is: 198-201 3. a. The name of the resident agent on file with the Bureau is: THE CORPORATION COMPANY b. The address of the registered office on file with the Bureau is: 30600 TELEGRAPH ROAD BINGHAM FARMS, Michigan 48025 (STREET ADDRESS) (CITY) (ZIP CODE) c. The mailing address of the above registered office on the file with the Bureau: (P.O. BOX) (CITY) (ZIP CODE) ENTER IN ITEM 4 THE INFORMATION AS IT SHOULD NOW APPEAR ON OUR RECORDS 4. a. The name of the resident agent is: The Prentice-Hall Corporation System, Inc. b. The address of the registered office is: c/o The Prentice-Hall CorporationSystem, Inc. 501 South Capitol Avenue, Lansing, Michigan 48933 (STREET ADDRESS) (CITY) (ZIP CODE) c. The mailing address of the registered office IF DIFFERENT THAN 4B IS: (P.O. BOX) (CITY) Michigan (ZIP CODE) 5. The above changes were authorized by resolution duly adopted by its board of directors or trustees, or by the resident agent of a profit corporation to change the address of the registered office in which case a copy of this statement has been mailed to the corporation. The Corporation further states that the address of its registered office and the address of its resident agent, as changed, are identical. Date signed: 1/15/96 Signed by: /s/ Timothy J. Simpson (SIGNATURE) Timothy J. SimpsonVP (TYPE OR PRINT NAME) (TYPE OR PRINT TITLE) GOLD SEAL APPEARS ONLY ON ORIGINAL MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU Date Received (FOR BUREAU USE ONLY) JUN 26 1996 Name ANNE GRIGORAKOS CSC NETWORKS/PRENTICE HALL Address 375 Hudson Street, 11th Floor City State Zip Code New York NY 10014 EFFECTIVE DATE: Document will be returned to name and address you enter above CERTIFICATE OF CHANGE OF REGISTERED OFFICE AND/OR CHANGE OF RESIDENT AGENT For use by Domestic and Foreign Corporations (Please read information and instructions on reverse side) Pursuant to the provisions of Act 284, Public Acts of 1972 (profit corporations) or Act 162, Public Acts of 1982 (nonprofit corporations), or Act 23, Public Acts of 1993 (limited liability companies), the undersigned corporation or limited liability company executes the following Certificate: 1. The name of the corporation or limited liability company is: OGDEN MARTIN SYSTEMS OF KENT, INC. 2. The corporation identification number assigned by the Bureau is: 198-201 3. a. The name of the resident agent on file with the Bureau is: THE PRENTICE-HALL CORPORATION SYSTEM, INC. b. The address of the registered office on file with the Bureau is: 501 South Capitol Avenue Lansing, Michigan 48933 (STREET ADDRESS) (CITY) (ZIP CODE) c. The mailing address of the above registered office on the file with the Bureau: Michigan (P.O. BOX) (CITY) (ZIP CODE) ENTER IN ITEM 4 THE INFORMATION AS IT SHOULD NOW APPEAR ON THE PUBLIC RECORD 4. a. The name of the resident agent is: THE PRENTICE-HALL CORPORATION SYSTEM, INC. b. The address of the registered office is: 601 Abbott Road, East Lansing, Michigan 48823 (STREET ADDRESS) (CITY) (ZIP CODE) c. The mailing address of the registered office IF DIFFERENT THAN 4B IS: Michigan (P.O. BOX) (CITY) (ZIP CODE) 5. The above changes were authorized by resolution duly adopted by its board of directors or trustees, or by the resident agent of a profit corporation to change the address of the registered office in which case a copy of this statement has been mailed to the corporation. The Corporation further states that the address of its registered office and the address of its resident agent, as changed, are identical. THE PRENTICE-HALL CORPORATION SYSTEM, INC. Date signed: June 24, 1996 Signed by: /s/ John H. Pelletier (SIGNATURE) JOHN H. PELLETIER,ASST. VP (TYPE OR PRINT NAME) (TYPE OR PRINT TITLE) GOLD SEAL APPEARS ONLY ON ORIGINAL MICHIGAN DEPARTMENT OF CONSUMER & INDUSTRY SERVICES BUREAU OF COMMERCIAL SERVICES Date Received (FOR BUREAU USE ONLY) MAR 19 2001 This document is effective on the date filed, unless a subsequent effective date within 90 days after received date is stated in the document. Ph. 517-663-2525 Ref # 12053 Attn: Cheryl J. Bixby MICHIGAN RUNNER SERVICE P.O. Box 266 Eaton Rapids, MI 48827 Effective Date: Document will be returned to the name and address you enter above. If left blank document will be mailed to the registered office. CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION For use by Domestic Profit and Nonprofit Corporations (Please read information and instructions on the last page) Pursuant to the provisions of Act 284, Public Acts of 1972 (profit corporations), or Act 162, Public Acts of 1982 (nonprofit corporations), the undersigned corporation executes the following Certificate: 1. The present name of the corporation is: Ogden Martin Systems of Kent, Inc. 2. The identification number assigned by the Bureau is: 198201 3. Article First of the Articles of Incorporation is hereby amended to read as follows: "The name of the corporation is COVANTA KENT, INC." GOLD SEAL APPEARS ONLY ON ORIGINAL COMPLETE ONLY ONE OF THE FOLLOWING: 4. For amendments adopted by unanimous consent of Incorporators before the first meeting of the board of directors or trustees.) The foregoing amendment to the Articles Incorporation was duly adopted on the _____ day of ___________________ ___________ in accordance with the provisions of the Act by the unanimous consent of the incorporator(s) before the first meeting of the Board of Directors or Trustees. Signed this _____ day of ___________________, ___________ (Signature) (Signature) (Type or Print Name) (Type or Print Name) (Signature) (Signature) (Type or Print Name) (Type or Print Name) 5. (For profit and nonprofit corporations whose Articles state the corporation is organized on a stock or on a membership basis.) The foregoing amendment to the Articles of Incorporation was duly adopted on the 28th day of February, 2001 by the shareholders if a profit corporation, or by the shareholders or members if a nonprofit corporation (check one of the following) [__] at a meeting the necessary votes were cast in favor of the amendment [__] by written consent of the shareholders or members having not less than the minimum number of votes required by statute in accordance with Section 407(1) and (2) of the Act if a nonprofit corporation, or Section 407(1) of the Act if a profit corporation. Written notice to shareholders or members who have not consented in writing has been given. (Note: Written consent by less than all of the shareholders or members is permitted only if such provision appears in the Articles of Incorporation.) [X] by written consent of all the shareholders or members entitled to vote in accordance with section 407(3) of the Act if a nonprofit corporation, or Section 407(2) of the Act if a profit corporation. [__] by the board of a profit corporation pursuant to section 611(2). Profit Corporations Nonprofit and Professional Service Corporations Signed this 12th day of March, 2001 Signed this _____ day of __________, ____ By: /s/ Patricia Collins By: ___________________________ ___________________________ (Signature of an authorized (Signature of President, officer of agent) Vice-President, Chairperson or Vice-Chairperson) Patricia Collins (Type or Print Name) (Type or Print Name) (Type or Print Title) EX-99.T3A29 28 exhibit_t3a-29.txt Exhibit T3a-29 -------------- 8731 254 Commonwealth of Pennsylvania Department of State Certificate of Incorporation Office of the Secretary of the Commonwealth To All to Whom These Presents Shall Come, Greeting: Whereas, Under the provisions of the Laws of the Commonwealth, the Secretary of the Commonwealth is authorized and required to issue a "Certificate of Incorporation" evidencing the incorporation of an entity. Whereas, The stipulations and conditions of the Law have been fully complied with by OGDEN MARTIN SYSTEMS OF LANCASTER, INC. Therefore, know Ye, That subject to the Constitution of this Commonwealth, and under the authority of the Laws thereof, I do by these presents, which I have caused to be sealed with the Great Seal of the Commonwealth, declare and certify the creation, erection and incorporation of the above in deed and in law by the name chosen hereinbefore specified. Such corporation shall have and enjoy and shall be subject to all the powers, duties, requirements, and restrictions, specified and enjoined in and by the applicable laws of this Commonwealth. Given under my Hand and the Great Seal of the Commonwealth, at the City of Harrisburg, this 4th day of May in the year of our Lord one thousand nine hundred and eighty-seven and of the Commonwealth the two hundred eleventh /S/ James J. Haggerty ------------------------------------ Secretary of the Commonwealth 0978004 DSCB204 (Rev. 81) PLEASE INDICATE (CHECK ONE) TYPE CORPORATION: ARTICLES OF INCORPORATION X DOMESTIC BUSINESS CORPORATION FEE DOMESTIC BUSINESS CORPORATION $75.00 COMMONWEALTH OF PENNSYLVANIA A CLOSE CORPORATION - COMPLETE BACK DEPARTMENT OF STATE - CORPORATION BUREAU DOMESTIC PROFESSIONAL CORPORATION 306 NORTH OFFICE BUILDING, HARRISBURG, PA 17120 ENTER BOARD LICENSE NO. 010 NAME OF CORPORATION (MUST CONTAIN A CORPORATE INDICATOR UNLESS EXEMPT UNDER 15 PS. 2908 B) Ogden Martin Systems Lancaster, Inc. 011 ADDRESS OF REGISTERED OFFICE IN PENNSYLVANIA (P.O. BOX NUMBER NOT ACCEPTABLE) c/o C T Corporation System, 123 South Broad Street, 012 CITY 033 COUNTY 013 STATE 064 Zip Code Philadelphia Philadelphia Pennsylvania 19109(51) 050 EXPLAIN THE PURPOSE OR PURPOSES OF THE CORPORATION To engage in any lawful act or activity for which corporations may be organized under the Pennsylvania Business Corporation Law. (ATTACH 81/2 x 11 SHEET IF NECESSARY) SEE ATTACHED RIDER The Aggregate Number of Shares, Classes of Shares and Par Value of Shares Which the Corporation Shall have Authority to Issue: 040 Number and Class of Shares 041 Stated Par Value Per 042 Total Authorized Capital 031 Term of Existe Share If Any 100 common $1.00 $100.00 Perpetual The Name and Address of Each Incorporator, and the Number and Class of Shares Subscribed to by each Incorporator 061, 062 060 Name 063, 064 Address (Street, City, State, Zip Code) Number & Class of Shares Richard C. Franzen 1633 Broadway, New York, NY 10019 1 common share Karen Lindo 1633 Broadway, New York, NY 10019 1 common share Gregory H. Wanner 1633 Broadway, New York, NY 10019 1 common share (ATTACH 81/2 x 11 SHEET IF NECESSARY) IN TESTIMONY WHEREOF, THE INCORPORATOR (S) HAS (HAVE) SIGNED AND SEALED THE ARTICLES OF INCORPORATION THIS 29th DAY OF April 19 87 /S/ Richard C. Franzen /S/ Gregory Wanner ----------------------------------- ----------------------------------- Richard C. Franzen Gregory Wanner /S/ Karen Lindo ----------------------------------- Karen Lindo - FOR OFFICE USE ONLY - 030 FILED 002 CODE 003 REV BOX SEQUENTIAL NO. 100 MICROFILM NUMBER MAY - 4 1987 195709 8731 252 REVIEWED BY 004 SICC AMOUNT 001 CORPORATION NUMBER DATE APPROVED $75.00 /S/James J. Haggerty DATE REJECTED CERTIFY TO INPUT BY LOG IN LOG IN (REFILE) x REV. [ ] 5/8 Secretary of the Commonwealth MAILED BY DATE x L & I Department of State VERIFIED BY LOG OUT LOG OUT (REFILE) Commonwealth of Pennsylvania OTHER [ ] 5/12 (PA. - 1343 - 5/16/86)
(GENERAL-500 - 3/21/83 8731 25 CONSENT TO USE OF NAME 779336 OGDEN MARTIN SYSTEMS OF PHILADELPHIA, INC., a corporation organized under the laws of the State of Pennsylvania, hereby consents to the organization-qualification of Ogden Martin Systems of Lancaster, Inc. in the State of Pennsylvania. IN WITNESS WHEREOF, the said Ogden Martin Systems of Philadelphia, Inc. has caused this consent to be executed by its Vice President and attested under its corporate seal by its Assistant Secretary, this 1st day of May 1987. OGDEN MARTIN SYSTEMS OF PHILADELPHIA, INC. By /S/ ----------------------------------------- Burton J. Carbino, Jr., Vice President Attest: /S/ - ----------------------------------------------------- J. L. Effinger, Assistant Secretary (SEAL) 8731 253 RIDER * * * * * Shareholders shall not have the right of cumulative voting. The directors may make, alter, amend, and repeal the by-laws subject to the power of the shareholders to change such action. Any corporate action upon which a vote of shareholders is required or permitted may be taken with the written consent of shareholders holding not less than two-thirds (2/3) of all of the stock entitled to vote upon the action if a meeting were held; provided that in no case shall the written consent be by holders having less than the minimum percentage of the vote required by statute for the proposed corporate action. 8731 254 COMMONWEALTH OF PENNSYLVANIA Department of State Certificate of Incorporation Office of the Secretary of the Commonwealth To All to Whom These Presents shall come, Greeting: Whereas, Under the provisions of the Laws of the Commonwealth, the Secretary of the Commonwealth is authorized and required to issue a "Certificate of Incorporation" evidencing the incorporation of an entity. Whereas, The stipulations and conditions of the Law have been fully complied with by OGDEN MARTIN SYSTEMS OF LANCASTER, INC. Therefore, know Ye, That subject to the Constitution of this Commonwealth, and under the authority of the Laws thereof, I do by these presents, which I have caused to be sealed with the Great Seal of the Commonwealth, declare and certify the creation, erection and incorporation of the above in deed and in law by the name chosen hereinbefore specified. Such corporation shall have and enjoy and shall be subject to all the powers, duties, requirements, and restrictions, specified and enjoined in and by the applicable laws of this Commonwealth. Given under my Hand and the Great Seal of the Commonwealth, at the City of Harrisburg, this 4th day of May in the year of our Lord one thousand nine hundred and eighty-seven and of the Commonwealth the two hundred eleventh /S/ Secretary of the Commonwealth 0978004 DSCB204 (Rev. 81) PLEASE INDICATE (CHECK ONE) TYPE CORPORATION: ARTICLES OF INCORPORATION X DOMESTIC BUSINESS CORPORATION FEE DOMESTIC BUSINESS CORPORATION $75.00 Commonwealth of Pennsylvania A CLOSE CORPORATION - COMPLETE BACK DEPARTMENT OF STATE - CORPORATION BUREAU DOMESTIC PROFESSIONAL CORPORATION 306 NORTH OFFICE BUILDING, HARRISBURG, PA 17120 ENTER BOARD LICENSE NO. 010 NAME OF CORPORATION (MUST CONTAIN A CORPORATE INDICATOR UNLESS EXEMPT UNDER 15 PS. 2908 B) Ogden Martin Systems Lancaster, Inc. 011 ADDRESS OF REGISTERED OFFICE IN PENNSYLVANIA (P.O. BOX NUMBER NOT ACCEPTABLE) c/o C T Corporation System, 123 South Broad Street, 012 CITY 033 COUNTY 013 STATE 064 Zip Code Philadelphia Philadelphia Pennsylvania 19109 (51) 050 EXPLAIN THE PURPOSE OR PURPOSES OF THE CORPORATION To engage in any lawful act or activity for which corporations may be organized under the Pennsylvania Business Corporation Law. (ATTACH 81/2 x 11 SHEET IF NECESSARY) SEE ATTACHED RIDER The Aggregate Number of Shares, Classes of Shares and Par Value of Shares Which the Corporation Shall have Authority to Issue: 040 Number and Class of Shares 041 Stated Par Value Per 042 Total Authorized Capital 031 Term of Share If Any 100 common $1.00 $100.00 Perpetual The Name and Address of Each Incorporator, and the Number and Class of Shares Subscribed to by each Incorporator 061, 062 060 Name 063, 064 Address (Street, City, State, Zip Code) Number & Class of Shares Richard C. Franzen 1633 Broadway, New York, NY 10019 1 common share Karen Lindo 1633 Broadway, New York, NY 10019 1 common share Gregory H. Wanner 1633 Broadway, New York, NY 10019 1 common share (ATTACH 81/2 x 11 SHEET IF NECESSARY) IN TESTIMONY WHEREOF, THE INCORPORATOR (S) HAS (HAVE) SIGNED AND SEALED THE ARTICLES OF INCORPORATION THIS 29th DAY OF April 19 87 /S/ Richard C. Franzen /S/ Gregory Wanner ----------------------------------- ----------------------------------- Richard C. Franzen Gregory Wanner /S/ Karen Lindo Karen Lindo - FOR OFFICE USE ONLY - 030 FILED 002 CODE 003 REV BOX SEQUENTIAL NO. 100 MICROFILM NUMBER MAY - 4 1987 195709 8731 252 REVIEWED BY 004 SICC AMOUNT 001 978004 CORPORATION NUMBER DATE APPROVED /S/James J. Haggerty DATE REJECTED CERTIFY TO INPUT BY LOG IN LOG IN (REFILE) x REV. [ ] 5/8 Secretary of the Commonwealth MAILED BY DATE x L & I Department of State VERIFIED BY LOG OUT LOG OUT (REFILE) Commonwealth of Pennsylvania OTHER [ ] 5/12 (PA. - 1343 - 5/16/86)
Commonwealth Of Pennsylvania May 18, 1987 To All to Whom These Presents Shall Come: Greeting: IN RE: "OGDEN MARTIN SYSTEMS OF LANCASTER, INC." I, James J. Haggerty, Secretary of the Commonwealth of the Commonwealth of Pennsylvania do hereby certify that the foregoing and annexed is a true and correct photocopy of Articles and Certificate of Incorporation which appear of record in this Department. IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the Secretary's Office to be affixed, the day and year above written. /S/ -------------------------------------------- Secretary of the Commonwealth Ogden Martin Systems of Lancaster, Inc. CORPORATE RECORDS PENNSYLVANIA 1987 PREINCORPORATION SUBSCRIPTION AGREEMENT * * * * * New York, New York, April 29, 1987. We, the undersigned, severally agree, each with the other, and with a corporation proposed to be organized under the Business Corporation Law of Pennsylvania, to be known as Ogden Martin Systems of Lancaster, Inc., which corporation shall be authorized to issue one hundred (100) Common shares of the par value of One Dollar ($1.00) each, amounting in the aggregate to One Hundred Dollars ($100.00), to take and do hereby severally, and not jointly, subscribe for the number of Common shares of said proposed corporation set opposite our respective signatures, and, in consideration of the mutual agreements herein contained, do agree to pay therefor One Dollar ($1.00) for each Common share so subscribed by each of us, and, hereby waiving all notice of assessment, we agree to make payment or payments therefor in cash, at such times and in such amounts as the board of directors may direct. NO. OF AMOUNT TO NAMES ADDRESSES SHARES BE PAID - ----- --------- ------ ------- /S/ Richard C. Franzen 1633 Broadway 1 $1.00 Richard C. Franzen N.Y., N.Y. 10019 /S/ Karen Lido 1633 Broadway 1 $1.00 Karen Lido N.Y., N.Y. 10019 /S/ Gregory H. Wanner 1633 Broadway 1 $1.00 Gregory H. Wanner N.Y., N.Y. 10019 TRANSFERS OF SUBSCRIPTION * * * * * KNOW ALL MEN BY THESE PRESENTS: That we, RICHARD C. FRANZEN, KAREN LINDO and GREGORY H. WANNER, for valid consideration, the receipt and sufficiency of which is hereby acknowledged, have sold, assigned, transferred and set over, and by these presents do sell, assign, transfer and set over unto Ogden Martin Systems, Inc., our right, title and interest as subscribers for shares of Ogden Martin Systems of Lancaster Inc., a corporation incorporated under the laws of the Commonwealth of Pennsylvania, to the extent of three (3) Common shares, and do hereby request and direct the said corporation to issue the certificate for said three (3) Common shares to and in its name or such other person as it may designate. IN WITNESS WHEREOF, we have hereunto set our hands and seals this 4th day of May, 1987. /S/ Richard C. Franzen (L.S.) --------------------------- Richard C. Franzen /S/ Karen Lindo (L.S.) --------------------------- Karen Lindo /S/ Gregory H. Wanner (L.S.) --------------------------- Gregory H. Wanner Signed, sealed and delivered in the presence of: /S/ Kalin L. Wynn - --------------------------- Kalin L. Wynn Ogden Martin Systems of Lancaster, Inc. * * * * * MINUTES OF MEETING OF INCORPORATORS * * * * * The meeting of the incorporators of Ogden Martin Systems of Lancaster, Inc. was held on the 4th day of May, 1987, at 4:30 P.M., at 1633 Broadway, New York, New York 10019, pursuant to a written waiver of notice signed by all said incorporators, fixing said time and place. The following incorporators were present in person: RICHARD C. FRANZEN KAREN LINDO and GREGORY H. WANNER being all of the incorporators. Upon motion, RICHARD C. FRANZEN was chosen as chairman and GREGORY H. WANNER was chosen as secretary of the meeting. The chairman reported that the Articles of Incorporation of the corporation were filed in the Department of State of Pennsylvania on the 4th day of May, 1987, and the secretary was instructed to cause a copy of such Articles of Incorporation to be inserted in the minute book. The secretary presented a form of by-laws for the regulation of the affairs of the corporation, which was read, section by section. Upon motion, duly made, seconded and carried, it was RESOLVED, that the by-laws submitted at and read to this meeting be, and the same hereby are, adopted as and for the by-laws of this corporation, and that the secretary be, and he hereby is, instructed to cause the same to be inserted in the minute book immediately following the copy of the Articles of Incorporation. The chairman stated that the next business to come before the meeting was the election of a Board of Directors. ALBERT O. CORNELISON, SALVATORE S. FERRARA, DAVID L. SOKOL and ROBERT M. DIGIA were nominated for directors of the corporation, to hold office until their successors are elected and shall have qualified. No other nominations having been made, the incorporators all voted and the chairman canvassed the vote cast. The chairman thereupon declared ALBERT O. CORNELISON, SALVATORE S. FERRARA, DAVID L. SOKOL and ROBERT M. DIGIA duly elected directors of the corporation, to serve until their successors are elected and shall have qualified, or until their resignation in writing has been filed with the corporation. The secretary was instructed to file with the minutes of this meeting the waiver of notice of the meeting. There being no further business to come before the meeting, upon motion, duly made, seconded and carried, the meeting thereupon adjourned. /S/ Gregory H. Wanner --------------------- Gregory H. Wanner Secretary of the meeting. Ogden Martin Systems of Lancaster, Inc. * * * * * WAIVER OF NOTICE MEETING OF INCORPORATORS * * * * * WE, THE UNDERSIGNED, being all the incorporators of the above-named corporation, do hereby waive notice of the time, place and purpose of the meeting of the incorporators of said corporation. We designate the 4th day of May, 1987, at 4:30 P.M., as the time, and 1633 Broadway, New York, New York 10019, as the place of said meeting; the purpose of said meeting being to adopt by-laws, elect directors and to transact such other business as may be necessary or advisable to complete the organization of the corporation. Dated: May 4, 1987. /S/ Richard C. Franzen ---------------------- Richard C. Franzen /S/ Karen Lindo ---------------------- Karen Lindo /S/ Gregory H. Wanner ---------------------- Gregory H. Wanner Microfilm Number Filed with the Department of State on -------------------- ------------------------ Entry Number Secretary of the Commonwealth -------------------------------- ------------------------ STATEMENT OF CHANGE OF REGISTERED OFFICE DSCB:15-1507/4144/5507/6144/8506 (Rev 90) Indicate type of entity (check one): X Domestic Business Corporation (15 Pa.C.S.ss.1507) __ Foreign Nonprofit Corporation (15 Pa.C.S.ss.6144) __ __ Foreign Business Corporation (15 Pa.C.S.ss.4144) __ Domestic Listed Partnership (15 Pa.C.S.ss.. 8506) __ Domestic Nonprofit Corporation (15 Pa.C.S. ss. 5507) In compliance with the requirements of the applicable provisions of 15 Pa.C.S. (relating to corporations and unincorporated associations) the undersigned corporation or limited partnership, desiring to effect a change of registered office, hereby states that: OGDEN MARTIN SYSTEMS OF LANCASTER, INC. 1. The name of the corporation or limited partnership is: 2. The (a) address of this corporation's or limited partnership's current registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is: (the Department is hereby authorized to correct the following information to conform to the records of the Department): (a) Number and Street City State Zip County (b) c/o: CT CORPORATION SYSTEM Philadelphia Name of Commercial Registered Office Provider County For a corporation or a limited partnership represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the corporation or limited partnership is located for venue and official publication purposes. 3. (Complete part (a) or (b)): (a) The address to which the registered office of the corporation or limited partnership in this Commonwealth is to be changed is: Number and Street City State Zip County (b) The registered office of the corporation or limited partnership shall be provided by: c/o: The Prentice-Hall Corporation System, Inc. Dauphin Name of Commercial Registered Office Provider County For a corporation or a limited partnership represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the corporation or limited partnership is located for venue and official publication purposes.
4. (Strike out if a limited partnership): Such change was authorized by the Board of Directors of the corporation. IN TESTIMONY WHEREOF, the undersigned corporation or limited partnership has caused this statement to be signed by a duly authorized officer this 15th day of January 1996 OGDEN MARTIN SYSTEMS OF LANCASTER, INC. ----------------------------------------------- Name of Corporation/Limited Partnership BY: /S/ Timothy J. Simpson -------------------------------------------- Title: VP ----------------------------------------- Microfilm Number --------------------------- Filed with the Department of State on FEB 06 1996 ----------- Entry Number -------------------------------- /S/ Janette Kander ------------------------------------------------- Secretary of the Commonwealth STATEMENT OF CHANGE OF REGISTERED OFFICE DSCB:15-1507/4144/5507/6144/8506 (Rev 90) Indicate type of entity (check one): _X Domestic Business Corporation (15 Pa.C.S.ss.1507) __ Foreign Nonprofit Corporation (15 Pa.C.S.ss.6144) - __ Foreign Business Corporation (15 Pa.C.S.ss.4144) __ Domestic Listed Partnership (15 Pa.C.S.ss.. 8506) __ Domestic Nonprofit Corporation (15 Pa.C.S. ss. 5507) In compliance with the requirements of the applicable provisions of 15 Pa.C.S. (relating to corporations and unincorporated associations) the undersigned corporation or limited partnership, desiring to effect a change of registered office, hereby states that: OGDEN MARTIN SYSTEMS OF LANCASTER, INC. 1. The name of the corporation or limited partnership is: 2. The (a) address of this corporation's or limited partnership's current registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is: (the Department is hereby authorized to correct the following information to conform to the records of the Department): (a) Number and Street City State Zip County (b) c/o: CT CORPORATION SYSTEM Philadelphia Name of Commercial Registered Office Provider County For a corporation or a limited partnership represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the corporation or limited partnership is located for venue and official publication purposes. 3. (Complete part (a) or (b)): (a) The address to which the registered office of the corporation or limited partnership in this Commonwealth is to be changed is: Number and Street City State Zip County (b) The registered office of the corporation or limited partnership shall be provided by: c/o: The Prentice-Hall Corporation System, Inc. Dauphin Name of Commercial Registered Office Provider County For a corporation or a limited partnership represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the corporation or limited partnership is located for venue and official publication purposes.
DSCB:15-1507/4144/5507/6144/8506 (Rev 90)-2 4. (Strike out if a limited partnership): Such change was authorized by the Board of Directors of the corporation. IN TESTIMONY WHEREOF, the undersigned corporation or limited partnership has caused this statement to be signed by a duly authorized officer this 15th day of January 1996. OGDEN MARTIN SYSTEMS OF LANCASTER, INC. Name of Corporation/Limited Partnership BY: /S/ Timothy J. Simpson ------------------------------------ Title: VP --------------------------------- PENNSYLVANIA DEPARTMENT OF STATE 17 CORPORATION BUREAU ROOM 308 NORTH OFFICE BUILDING P.O. BOX 8722 HARRISBURG, PA 17105-8722 OGDEN MARTIN SYSTEMS OF LANCASTER, INC. THE CORPORATION BUREAU IS HAPPY TO SEND YOU YOUR FILED DOCUMENT. PLEASE NOTE THE FILE DATE AND THE SIGNATURE OF THE SECRETARY OF THE COMMONWEALTH. THE CORPORATION BUREAU IS HERE TO SERVE YOU AND WANTS TO THANK YOU FOR DOING BUSINESS IN PENNSYLVANIA. IF YOU HAVE ANY QUESTIONS PERTAINING TO THE CORPORATION BUREAU, CALL (717) 787-1057. ENTITY NUMBER: 0978004 MICROFILM NUMBER: 09610 0665-0666 CSC NETWORKS COUNTER Microfilm Number Filed with the Department of State on FEB ---------------------------- ---- 06 1996 Entry Number 978004 -------------------------------- /S/ Janette Kander ------------------------------------------ Secretary of the Commonwealth STATEMENT OF CHANGE OF REGISTERED OFFICE DSCB:15-1507/4144/5507/6144/8506 (Rev 90) Indicate type of entity (check one): X Domestic Business Corporation (15 Pa.C.S.ss.1507) __ Foreign Nonprofit Corporation (15 Pa.C.S.ss.6144) __ __ Foreign Business Corporation (15 Pa.C.S.ss.4144) __ Domestic Listed Partnership (15 Pa.C.S.ss.. 8506) __ Domestic Nonprofit Corporation (15 Pa.C.S. ss. 5507) In compliance with the requirements of the applicable provisions of 15 Pa.C.S. (relating to corporations and unincorporated associations) the undersigned corporation or limited partnership, desiring to effect a change of registered office, hereby states that: OGDEN MARTIN SYSTEMS OF LANCASTER, INC. 1. The name of the corporation or limited partnership is: 2. The (a) address of this corporation's or limited partnership's current registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is: (the Department is hereby authorized to correct the following information to conform to the records of the Department): (a) Number and Street City State Zip County (b) c/o: CT CORPORATION SYSTEM Philadelphia Name of Commercial Registered Office Provider County For a corporation or a limited partnership represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the corporation or limited partnership is located for venue and official publication purposes. 3. (Complete part (a) or (b)): (a) The address to which the registered office of the corporation or limited partnership in this Commonwealth is to be changed is: Number and Street City State Zip County (b) The registered office of the corporation or limited partnership shall be provided by: c/o: The Prentice-Hall Corporation System, Inc. Dauphin Name of Commercial Registered Office Provider County For a corporation or a limited partnership represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the corporation or limited partnership is located for venue and official publication purposes. DSCB:15-1507/4144/5507/6144/8506 (Rev 90)-2 4. (Strike out if a limited partnership): Such change was authorized by the Board of Directors of the corporation. IN TESTIMONY WHEREOF, the undersigned corporation or limited partnership has caused this statement to be signed by a duly authorized officer this 15th day of January 1996 OGDEN MARTIN SYSTEMS OF LANCASTER, INC. --------------------------------------------- Name of Corporation/Limited Partnership BY: /S/ Timothy J. Simpson --------------------------------------------- Title: VP ------------------------------------------
CERTIFICATE OF CHANGE OF REGISTERED OFFICE OR REGISTERED AGENT, OR BOTH (FOR USE BY DOMESTIC AND FOREIGN, PROFIT AND NON-PROFIT CORPORATIONS) CORPORATION NAME OGDEN MARTIN SYSTEMS OF LANCASTER, INC. STATE OF ORIGINAL INCORPORATION PENNSYLVANIA IMPORTANT--INCLUDE INFORMATION ON BOTH THE PRIOR AND NEW AGENT PRIOR AGENT NEW AGENT The Prentice--Hall Corporation NAME THE CORPORATION TRUST COMPANY NAME System, New Jersey, Inc. PRIOR AGENT NEW AGENT STREET ADDRESS 820 BEAR TAVERN ROAD STREET ADDRESS 830 Bear Tavern Road CITY WEST TRENTON STATE NJ ZIP 08628 CITY West Trenton STATE N.J. ZIP 08628 The corporation states that the address of its new registered office and the address of its new registered agent are identical. Further, the changes designated on this form were authorized by resolution duly adopted by its board of directors or members. By //S Timothy J Simpson Title VP Date 1/15/96 NOTE--This form must be executed by the chairman of the board, or the president, or vice president of the corporation. FEES: Change of Agent Name--$10.0O Change of Agent Address--$10.0O Change of Both--$10.0O MAKE CHECKS PAYABLE TO THE SECRETARY OF STATE (NO CASH PLEASE) IMPORTANT NOTICE FOR OFFICIAL USE ONLY The failure of the corporation to notify the Filed Secretary of State of a change in the registered agent or registered office will result in a penalty of $200.00 and the entering of a docketed judgment against the corporation in the Superior Court of New Jersey. FEB 22 1996 LONNA R. HOOKS Secretary of State Rev. 4/88
C-113A Rev. 12/93 New Jersey Department of the Treasury Division of Revenue Application for Amended Certificate of Authority (For Use by Foreign Profit and Nonprofit Corporations) Check Appropriate Statute: X N.J.S.A. 14A:13-6 New Jersey Profit Corporation Act ___ (File in Duplicate) ___ N.J.S.A. 15A:13-6 New Jersey Nonprofit Corporation Act (File in Triplicate) Pursuant to the provisions of the appropriate Statute, checked above, of the New Jersey Statutes, the undersigned corporation hereby applies for an Amended Certificate of Authority, and for this purpose certifies to the following: 1. Original corporate name: OGDEN MARTIN SYSTEMS OF LANCASTER, INC. 2. New Jersey corporate number 3. New name of corporation (if applicable): COVANTA LANCASTER, INC. 4. Incorporated under the laws of: PENNSYLVANIA The date of foreign incorporation: 5/4/87 5. The duration of the corporation is: 6. The address of its main office or headquarters is: (Street and postal designation) 40 Lane Road Fairfield New Jersey 07007 (City) (State) (Zip) 7. The name and address of its Registered agent in New Jersey is: (Agent's Name) Corporation Service Company (Street and postal designation) 830 Bear Tavern Road West Trenton New Jersey 08628 (City) (State) (Zip) Said Registered Agent is an agent of the corporation upon whom process against the corporation may be served. 8. The business/activities which the corporation is authorized to conduct in New Jersey, and which it is also authorized to conduct in its home jurisdiction are: No change NOTE: Attach a Good Standing Certificate from the home state dated no more than 30 days prior to filing in New Jersey. Signature: /S/ [ ] Title: Executive Vice President Date: 3/1/01 (Must be Chairperson of the Board, President, or Vice President) COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE MARCH 23, 2001 TO ALL WHOM THESE PRESENTS SHALL COME, GREETING: I DO HEREBY CERTIFY THAT, COVANTA LANCASTER, INC. is duly incorporated under the laws of the Commonwealth of Pennsylvania and remains a subsisting corporation so far as the records of this office show, as of the date herein. IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the Seal of the Secretary's Office to be affixed, the day and year above written. /S/ Kim Pizzingrilli ----------------------------- Secretary of the Commonwealth STATE OF NEW JERSEY DEPARTMENT OF TREASURY AMENDED CERTIFICATE OF AUTHORITY COVANTA LANCASTER, INC. With the Previous or Alternate Name OGDEN MARTIN SYSTEMS OF LANCASTER, INC. I, the Treasurer of the State of New Jersey, do hereby certify, that the above-named Pennsylvania Foreign Profit Corporation did on the 26th of March, 2001, file and record in this department a name change amendment as by the statutes of this State required. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal at Trenton, this 27th day of March, 2001 /S/ Isabel Miranda --------------------------------- Isabel Miranda Acting State Treasurer STATE OF NEW JERSEY DEPARTMENT OF TREASURY FILING CERTIFICATION (CERTIFIED COPY) COVANTA LANCASTER, INC. 0100339205 I, the Treasurer of the State of New Jersey, do hereby certify, that the above named business did file and record in this department a Certificate of Amendment on March 26th, 2001 and that the attached is a true copy of this document as the same is taken from and compared with the original(s)filed in this office and now remaining on file and of record. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal at Trenton, this 27th day of March, 2001 /S/ Isabel Miranda --------------------------------- Isabel Miranda Acting State Treasurer PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU ROOM 308 NORTH OFFICE BUILDING P.O. BOX 8722 HARRISBURG, PA 17105-8722 COVANTA LANCASTER, INC. THE CORPORATION BUREAU IS HAPPY TO SEND YOU YOUR FILED DOCUMENT. PLEASE NOTE THE FILE DATE AND THE SIGNATURE OF THE SECRETARY OF THE COMMONWEALTH. THE CORPORATION BUREAU IS HERE TO SERVE YOU AND WANTS TO THANK YOU FOR DOING BUSINESS IN PENNSYLVANIA. IF YOU HAVE ANY QUESTIONS PERTAINING TO THE CORPORATION BUREAU, CALL (717) 787-1057. ENTITY NUMBER: 0978004 MICROFILM NUMBER: 2001021 1377-1378 CSC NETWORKS COUNTER 200121 - 1377 PA009 - CT Systcm Online Microfilm Number Filed with the Department of State on MAR 14 2001 ----------------- ------------------- Entity Number 978004 -------------------- --------------------------------------------------------- Secretary of the Commonwealth ARTICLES OF AMENDMENT-DOMESTIC BUSINESS CORPORATION DSCB:l5-1915 (Rev 90) In compliance with the requirements of 15 Pa.C.S. ss. 1915 (relating to articles of amendment), the undersigned business corporation, desiring to amend its Articles, hereby states that: 1. The name of the corporation is: Ogden Martin Systems of Lancaster, Inc. 2. The (a) address of this corporation's current registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is (the Department is hereby authorized to correct the following information to conform to the records of the Department): (a) Number and Street City State Zip County (b) c/o: The Prentice-Hall Corporation System Dauphin Name of Commercial Registered Office Provider County For a corporation represented by a commercial registered office provider, the county in (b) shall be deemed the county in which the corporation is located for venue and official publication purposes. 3. The statute by or under which it was incorporated is: Business Corporation Law of 1933 4. The date of its incorporation is: 5/4/87 5. (Check, and if appropriate complete, one of the following): X The amendment shall be effective upon filing these Articles of Amendment --- in the Department of State. The amendment shall be effective on at --- Date Hour 6. (Check one of the following): X The amendment was adopted by the shareholders (or members) pursuant to 15 --- Pa.C.S. ss. 1914(a) and (b). The amendment was adopted by the board of directors pursuant to 15 Pa.C.S.ss.1914(c). --- 7. (Check, and if appropriate complete, one of the following): X The amendment adopted by the corporation, set forth in full, is as --- follows: "First: The name of the corporation is COVANTA LANCASTER, INC." DSCB:15-1915 (Rev 90)-2 The amendment adopted by the corporation as set forth in full in --- Exhibit Aattached hereto and made a part hereof. 8. The restated Articles of Incorporation supersede the original Articles and all amendments thereto.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles of Amendment to be signed by a duly authorized officer thereof this 12th day of March , 2001 . Ogden Martin Systems of Lancaster, Inc. ------------------------------------------ (Name of Corporation) BY: /s/ Patricia Collins ------------------------------------------ (Signature) TITLE: Asst. Secretary ---------------------------------------- EX-99.T3A30 29 exhibit_t3a-30.txt Exhibit T3a-30 State of Florida Department of State I certify the attached is a true and correct copy of the Articles of Incorporation, as amended to date, of COVANTA LEE, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is L53388. Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Twenty-fifth day of February, 2004 /s/ Glenda E. Hood Glenda E. Hood Secretary of State STATE OF FLORIDA ARTICLES OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF LEE, INC. The undersigned, acting as incorporator of a corporation under the Florida General Corporation Act, adopts the following Articles of Incorporation: FIRST: The name of the corporation is: Ogden Martin Systems of Lee, Inc. SECOND: The period of its duration is perpetual. THIRD: The purpose for which the corporation is organized is to engage in the transaction of any or all lawful business for which corporations may be incorporated under the provisions of the Florida General Corporation Act. FOURTH: The aggregate number of shares which the corporation shall have authority to issue is: 100 at $1.00 par value. FIFTH: The street address of the initial registered office of the corporation is c/o C T CORPORATION SYSTEM, 8751 West Broward Boulevard, Plantation, Florida 33324, and the name of its initial registered agent at such address is C T CORPORATION SYSTEM. SIXTH: The number of directors constituting the initial board of directors of the corporation is five, and the names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders or until their successors are elected and shall qualify are: Ralph E. Ablon Robert M. Digia c/o Ogden Corporation c/o Ogden Allied Services Corporation 2 Pennsylvania Plaza 2 Pennsylvania Plaza New York, NY 10121 New York, NY 10121 SEVENTH: The name and address of the incorporator is: Melanie Sharman 1311 Executive Center Drive Suite 200 Tallahassee, FL 32301 DATED February 27, 1990 /s/ Melanie Sharman Incorporator STATE OF FLORIDA COUNTY OF LEON The foregoing instrument was acknowledged before me this 27th day of February by Melanie Sharman. My Commission Expires: Notary Public, State of Florida My Commission Expires June 17, 1991 /s/______________________ Scott G. Mackin Maria P. Monet c/o Ogden Projects, Inc. c/o Ogden Financial Services, Inc. 40 Lane Road 2 Pennsylvania Plaza Fairfield, NJ 07007 New York, NY 10121 David L. Sokol c/o Ogden Projects, Inc. 40 Lane Road Fairfield, NJ 07007 ACCEPTANCE OF APPOINTMENT Pursuant to Section 48.091 and 607.037, Florida Statutes, the undersigned acknowledges and accepts its appointment as registered agent of OGDEN MARTIN SYSTEMS OF LEE, INC. and agrees to act in that capacity and to comply with the provisions of the Florida General Corporation Act relative to keeping open the registered office at the address specified above. The undersigned is familiar with, and accepts the obligations of, Section 607.325, Florida Statutes. DATE: February 27, 1990 C T CORPORATION SYSTEM /s/ Tanya M. Villar Tanya M. Villar Special Assistant Secretary ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF LEE, INC. ________________________________________________ (present name) Pursuant to the provisions of section 607.1006, Florida Statutes, this Florida profit corporation adopts the following articles of amendment to its articles of incorporation: FIRST: Amendment adopted: Article First is amended to read: First: The name of the Corporation is COVANTA LEE, INC. SECOND: The date of the amendment's adoption is: 2/28/2001 THIRD: Adoption of Amendment: The amendment was approved by the shareholders. The number of votes cast for the amendment was sufficient for approval. Signed this 12th day of March, 2001. Signature /s/ EX-99.T3A31 30 exhibit_t3a-31.txt CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY EIGHT CORP. The undersigned, for the purpose of organizing a corporation under the General Corporation Law of Delaware, does hereby certify: FIRST: The name of the Corporation is Ogden Martin Systems of Huntington Resource Recovery Eight Corp. SECOND: The address of the Corporation's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 in the County of New Castle and the name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware. - 2 - FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is ONE THOUSAND FIVE HUNDRED (1,500), which shares shall be of one class, shall be designated Common Stock and shall have no par value. FIFTH: The name and mailing address of the incorporator is: Frank C. Shaw Nixon, Hargrave, Devans & Doyle One Thomas Circle, N.W. Suite 800 Washington, D.C. 20005 SIXTH: For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders, it is further provided that: 1. The election of the directors of the Corporation need not be by written ballot unless the Bylaws so require; and 2. In furtherance and not in limitation of the powers conferred by statute, the board of - 3 - directors is expressly authorized to make, alter or repeal the Bylaws of the Corporation. EIGHTH: No director of the Corporation shall be held personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty in his capacity as a director, provided that liability shall not be eliminated or limited (1) for a breach of the director's duty of loyalty to the Corporation or its stockholders, or (2) for acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law, or (3) for any transaction from which the director derived an improper personal benefit, or (4) for acts in violation of Section 174 of the General Corporation Law. Any repeal or amendment of this Article, insofar as it would in any way enlarge the liability of any director of the Corporation, shall be ineffective with respect to any acts or omissions occurring prior to the date of such repeal or amendment. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Incorporation on October 7, 1991. /s/ Frank C. Shaw ----------------------------------------- Frank C. Shaw, Incorporator CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY EIGHT CORP. * * * * * * * Ogden Martin Systems of Huntington Resource Recovery Eight Corp. (the "Corporation"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: 1. That pursuant to written consents of the Board of Directors and the sole stockholder of the Corporation, resolutions were duly adopted amending the Certificate of Incorporation of the Corporation as follows: RESOLVED, that the first Article of the Certificate of Incorporation of the Corporation is amended to read as follows: "FIRST: The name of the corporation is: Ogden Martin Systems of Long Island, Inc." 2. That the foregoing Amendment to the Certificate of Incorporation was duly adopted in accordance with Section 242 of the Delaware General Corporation Law. IN WITNESS WHEREOF, said Ogden Martin Systems of Huntington Resource Recovery Eight Corp. has caused this Certificate to be signed by William C. Mack, its Executive Vice President, and attested by Louis D. Montresor, its Assistant Secretary, this 10th day of October, 1991. /s/ William C. Mack ----------------------------------- William C. Mack Executive Vice President Attest: /s/ Louis D. Montresor - --------------------------------- Louis D. Montresor Assistant Secretary CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN MARTIN SYSTEMS OF LONG ISLAND, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15, 1996 /s/ Timothy J. S[?????] ------------------------------------ Authorized Officer CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF LONG ISLAND, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN MARTIN SYSTEMS OF LONG ISLAND, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA LONG ISLAND, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ___, 2001. /s/ Patricia Collins --------------------------------- Name: PATRICIA COLLINS Title: ASST. SECRETARY EX-99.T3A32 31 exhibit_t3a-32.txt Exhibit T3A-32. CERTIFICATE STATE OF OREGON OFFICE OF THE SECRETARY OF STATE Corporation Division I, BILL BRADBURY, Secretary of State of Oregon, and Custodian of the Seal of said State, do hereby certify: That the attached Document File for: COVANTA MARION LAND CORP. is a true copy of the original documents that have been filed with this office. In Testimony Whereof, I have hereunto set my hand and affixed hereto the Seal of the State of Oregon. BILL BRADBURY, Secretary of State By /s/ Marilyn R. Smith -------------------------------------------- Marilyn R. Smith February 25, 2004 1 Exhibit T3A-32. Come visit us on the internet at http://www.fiIinginoregon.com FAX (503) 378-4381 2 Exhibit T3A-32. ARTICLES OF INCORPORATION OF OGDEN MARION LAND CORP. The undersigned natural person of the age of eighteen years or more, acting as incorporator under the Oregon Business Corporation Act, adopts the following Articles of Incorporation: ARTICLE I The name of this corporation is OGDEN MARION LAND CORP. and its duration shall be perpetual. ARTICLE II The purposes for which the corporation is organized are: To engage in any lawful activity for which corporations may be organized under the Oregon Business Corporation Act. ARTICLE III The aggregate number of shares which the corporation shall have authority to issue is 1000 shares of common stock, without par value. ARTICLE IV The address of the initial registered office of the corporation and the mailing address to which the Corporation Commissioner may mail notices as required by the: Oregon Business Corporation Act is 111 S.W. Fifth Avenue, Portland, Oregon 97204, and the name of its initial registered agent at such address is Richard A. Cantlin. Notices to the corporation from the Oregon Corporation Commissioner may be sent to 111 S.W. Fifth Avenue, Suite 3500, Portland, Oregon 97204. ARTICLE V The number of directors constituting the initial board of directors of the corporation is three, and the names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders or until their successors are elected and shall qualify are: 3 Exhibit T3A-32.
Name Address ---- ------- David L. Sokol 140 East Ridgewood Avenue Paramus, NJ 07652 Maria P. Monet 277 Park Avenue New York, NY 10172 James M. Russo 277 Park Avenue New York, NY 10172
ARTICLE VI The name and address of the incorporator is:
Name Address ---- ------- David Wu 111 S.W. Fifth Avenue, Suite 3500 Portland, Oregon 97204
ARTICLE VII No shareholder of the corporation Shall, by reason of his holding shares of any class, have any preemptive or preferential rights to purchase or subscribe to any shares of the corporation now or hereafter to be authorized, or any notes, debentures, bonds or other securities convertible into or carrying options or warrants to purchase shares of any class now or hereafter to be authorized (whether or not the issuance of any such shares or such notes, debentures, bonds or other securities Would adversely affect the dividend or voting rights of such shareholder) other than such rights, if any, as the board of directors in its discretion from time to time may grant and at such price as the board of directors may fix; and the board of directors may issue shares of the corporation or any notes, debentures, bonds or other securities, convertible into or carrying options or warrants to purchase shares without offering any such shares, either in whole or in part, to the existing shareholders. ARTICLE VIII The corporation shall indemnify its officers and directors to the full extent permissible under applicable law. 4 Exhibit T3A-32. I, the undersigned incorporator, declare under penalties of perjury that I have examined the foregoing and to best of my knowledge and belief, it is true, correct and complete. /s/ David Wu --------------------------------------- David Wu Dated September 15, 1986 5 Exhibit T3A-32. ARTICLES OF AMENDMENT ACTION OF SHAREHOLDER OF OGDEN MARION LAND CORP. Ogden Marion Land Corp., an Oregon corporation, hereby adopts the following articles of amendment pursuant to ORS 57.355 et seq. 1. The name of the corporation, which is not changed by this amendment, is Ogden Marion Land Corp. The corporation's Corporation Division Registry Number is 04641684. 2. Article III of the heretofore existing articles of incorporation is hereby deleted and a new Article III in the form attached as Exhibit A hereto is hereby substituted therefore. 3. The amendment was adopted by the shareholder of the corporation on November 1, 1986. 4. The corporation has outstanding 1,000 shares of common stock, all of which were entitled to vote upon the amendment as a single class, and 1,000 shares voted for the amendment, and none voted against. 5. The amendment does not effect an exchange, reclassification, or cancellation of issued shares or a change in stated capital. The undersigned officers of Ogden Marion Land Corp. hereby certify under penalty of perjury that they have examined the foregoing articles of amendment and to the best of their knowledge and belief, the articles of amendment are true, correct, and complete. Dated November 1, 1986 /s/ Maria P. Monet ---------------------------------- Maria P. Monet Vice President /s/ Martin N. Hausman ---------------------------------- Martin N. Hausman Assistant Secretary 6 Exhibit T3A-32. Person to contact regarding this filing: John J. DeMott 1ll S.W. Fifth Avenue Portland, Oregon 97204 (503) 224--5858 7 Exhibit T3A-32. ARTICLE III The aggregate number of shares which the corporation shall have authority to issue is 1,300, of which 300 shares shall be Cumulative Preferred Stock, $1,000 par value and 1,000 shares shall be Common Stock, without par value. The preferences, limitations and relative rights of each class of such shares shall be as follows: Section A. Cumulative Preferred Stock This Section A sets forth a description of the Cumulative Preferred Stock and a statement of the preferences, limitations and relative rights in respect of the shares of the Cumulative Preferred Stock. Subsection 1. Dividends on Cumulative Preferred Stock and Junior Stock. The holders of the Cumulative Preferred Stock shall be entitled to receive, when and as declared by the board of directors out of assets of the corporation legally available for dividends, cumulative cash dividends at, but not exceeding, the following described annual rate. The annual rate of dividend per share payable on the Cumulative Preferred Stock shall be $45 or, if greater for any calendar year for which a dividend is payable (other than a year in which such share of Cumulative Preferred Stock is not outstanding for the entire year), an amount equal to one sixth of one percent of the total rent payable for such year under Article III of the Ground Lease dated as of November 1, 1986, between the corporation and Ogden Martin Systems of Marion, Inc., as presently in effect. The amount of rent so paid for any year may be conclusively determined by a certificate of the corporation's independent certified public accountants. In any calendar year in which a share of Cumulative Preferred Stock is not outstanding during the entire year (i.e., a year in which the share of Cumulative Preferred Stock is issued or is redeemed) the dividend rate for such share shall be an amount equal to the product of $45 multiplied by a fraction, the numerator of which shall be the number of days such share is outstanding during such year and the denominator shall be the number of days in such year. Dividends with respect to any calendar year shall be paid on the first day of March of the following year. Such dividends on the Cumulative Preferred Stock shall be payable before any dividend on any junior stock (which term shall mean the Common Stock of the corporation and any other class of stock of the corporation hereafter authorized 8 Exhibit T3A-32. ranking junior to the Cumulative Preferred Stock as to dividends or assets) shall be paid, or set aside for payment. Dividends on the Cumulative Preferred Stock shall be cumulative from the date of issue thereof. Arrearages in the payment of dividends shall not bear interest. In case dividends are not paid in full, the shares of the Cumulative Preferred Stock shall share ratably in the payment of dividends, including accruals, if any, in proportion to the sums which would be payable on said shares if all dividends were declared and paid in full. As long as any of the Cumulative Preferred Stock remains outstanding, no dividend whatever shall be paid or declared on any junior stock, nor shall any distribution be made on any junior stock, other than a dividend payable in junior stocks, nor shall any shares of any junior stock be acquired for a consideration by the corporation: (a) unless all dividends on the Cumulative Preferred Stock for all past dividend periods shall have been paid or in the case of the immediately preceding dividend period shall have been declared and a sum sufficient for the payment thereof set apart; and (b) unless, if at any time the corporation is obligated to redeem shares of the Cumulative Preferred Stock, the amount payable upon redemption shall have been paid or set aside for payment. Subject to the foregoing provisions, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the board of directors may be declared and paid on any junior stock from time to time out of the remaining funds of the corporation legally available for the payment of dividends, and the cumulative Preferred Stock shall not be entitled to participate in any such dividends, whether payable in cash, stock or otherwise. Subsection 2. Redemption. The corporation, at the option of the board of directors, may redeem at any time on or after January 1, 1997, all but not less than all the shares of the Cumulative Preferred Stock then outstanding at a redemption price equal to the par 9 Exhibit T3A-32. value thereof, together with an amount equal to the dividends accrued thereon to the date of redemption. Notice of any redemption of Cumulative Preferred Stock shall be given by the corporation by mailing a copy of such notice at least 30 days prior to the date fixed for such redemption to the holders of record of the Cumulative Preferred Stock to be redeemed at their respective addresses appearing on the books of the corporation, and the time of mailing such notice shall be deemed to be the time of delivery thereof. At any time after notice of redemption has been so given, the corporation may, on a date specified in the notice of redemption, deposit with a bank or trust company, named in such notice, doing business in the City of Portland, Oregon, and having capital, surplus and undivided profits of at least $5,000,000, the moneys necessary for such redemption, in trust, for the accounts of the holders of the shares to be redeemed. Upon such deposit, or, if no such deposit is made, upon the date of redemption (unless the corporation shall default in payment of the moneys necessary for such redemption), all shares with respect to which such notice of redemption was given shall cease to be outstanding for any purpose, whether or not the certificates for such shares shall have been surrendered for cancellation, and all rights with respect to such shares shall thereupon cease and terminate, except the right of the holders of the certificates for such shares to receive the amount payable upon the redemption thereof, without interest, from said bank or trust company, or from the corporation, if no such deposit is made, and the right to exercise, on or before the date of redemption, any unexpired privilege of conversion. Any funds so deposited by the corporation and unclaimed at the end of one year from the date of redemption shall be repaid to the corporation upon its request, after which the holders of the shares so called for redemption shall look only to the corporation for payment thereof. Any interest on funds so deposited shall belong to the corporation and shall be paid to it from time to time. Subsection 3. Amounts Payable on Liquidation or Dissolution. In the event of any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, the holders of shares of the Cumulative Preferred Stock then outstanding shall be entitled to receive in cash out of the assets of the 10 Exhibit T3A-32. corporation, before any distribution or payment shall be made to the holders of any junior stock, an amount equal to the then applicable redemption price plus in respect of each such share an amount equal to the unpaid dividends accrued thereon to the date fixed for such payment; provided that, if such assets available for tbe.ho1dexsof the Cumulative Preferred Stock then outstanding shall be less than the total amount all such holders would be so entitled to receive if all such preferential amount or amounts and dividends were paid in full, then the corporation shall, in lieu of making such payments in full to the holders of the Cumulative Preferred Stock then outstanding, make payments to the holders of the Cumulative Preferred Stock then outstanding (in proportion to the respective amounts which would be payable on account of such liquidation, dissolution or winding up if all such payments were paid in full) of an aggregate amount equal to such assets so available. If such payment shall have been made in full to the holders of the Cumulative Preferred Stock on voluntary or involuntary liquidation, dissolution or winding up (or deposited to their accounts in a bank or trust company doing business in the City of Portland, Oregon, and having capital, surplus and undivided profits of at least $5,000,000 so as to be, and continue to be, available for such holders), the remaining assets of the corporation shall be distributed among the holders of junior stock, according to their respective rights and preferences and in accordance with their respective holdings. For the purposes of this Subsection 3, a consolidation or merger of the corporation with any other corporation shall be deemed, as such, to constitute a liquidation, dissolution or winding up of the corporation, but any reorganization of the corporation required by any court or administrative body in order to comply with any provision of law shall be deemed to be involuntary liquidation, dissolution or winding up of the corporation unless the preferences, limitations and relative rights in respect of the Cumulative Preferred Stock are not adversely affected by such reorganization. Subsection 4. Status of Redeemed and Purchased Shares. Except as otherwise required by law, all shares of the Cumulative Preferred Stock redeemed, purchased, or otherwise acquired by the corporation, shall be retired and shall not be reissued. The corporation may, from time to time, take such appropriate corporate action as may be necessary to reduce the authorized amount of the Cumulative Preferred Stock accordingly. Subsection 5. Voting Rights. 11 Exhibit T3A-32. Except as otherwise required by law, the Cumulative Preferred Stock shall have no voting rights. Section B. Common Stock Except for and subject to those rights expressly granted in Section A of this Article III to the holders of the Cumulative Preferred Stock, or except as may be provided by the laws of Oregon, the holders of the Common Stock shall have all other rights of shareholders, including, but not by way of limitation: (1) voting power for all purposes and the right to all notices of meetings or of other corporate actions, (2) the right to receive dividends when and as declared by the board of directors out of assets legally available therefore, and (3) in the event of any distribution of assets upon liquidation, dissolution or winding up of the corporation or otherwise, the right to receive all of the assets of the corporation remaining after payment to the holders of the Cumulative Preferred Stock of the specific amounts which they are entitled to receive upon such liquidation, dissolution or winding up of the corporation, ass provided in Section A of this Article III. 12 Exhibit T3A-32. State of Oregon Phone: (503) 986-2200 Articles of Amendment - Fax: (503) 378-4381 Business/Professional/Nonprofit Secretary of State Check the appropriate box below: Corporation Division For office use only 225 Capitol St. NE, Suite 151 Salem, OR 97310-1327 X BUSINESS/PROFESSIONAL CORPORATION (Complete only 1, 2, 3, 4, 6, 7) NONPROFIT CORPORATION (Complete only 1, 2, 3, 5, 6, 7) Registry No. 046416-84 Attach Additional Sheet if Necessary Please Type or Print Legibly in Black Ink 1) Name of Corporation Prior to Amendment: OGDEN MARION LAND CORP. 2) State the Article Number(s) and set forth the Article(s) as it is amended to read. (Attach a separate sheet if necessary) Article First is amended to read: First: The name of the corporation is COVANTA MARION LAND CORP. 3) The Amendment was Adopted On: February 28, 2001 (If more than one amendment was adopted, identify the date of adoption of each amendment.) BUSINESS/PROFESIONAL CORPORATION ONLY 4) Check the Appropriate Statement X Shareholder action was required to adopt the amendment(s). The vote was as follows:
Class or series of shares Common Number of shares outstanding 1,000 Number of votes entitled to be cast 1,000 Number of votes cast FOR 100% Number of votes cast AGAINST 0
Shareholder action was not required to adopt the amendment(s). The amendments were adopted by the board of directors without shareholder action. The corporation has not issued any shares of stock. Shareholder action was not required to adopt the amendment(s). The amendment(s) was adopted by the incorporators or by the board of directors. 5) Check the Appropriate Statement Membership approval was not required. The amendment(s) was approved by a sufficient vote of the board of directors or incorporators. Membership approval was required. The membership vote was as follows: Class(es) entitled to vote Number of members entitled to vote Number of votes entitled to be cast Number of votes cast FOR Number of votes cast AGAINST 13 Exhibit T3A-32. 6) Execution Printed Name Signature Title Patricia Collins /s/ Patricia Collins Asst. Secretary___ ----------------------- ------------------------- ---------------------
7) Contact Name Elva Shipkowski (CSC) Daytime Phone Number - Including Area Code 302-636-5401 ext. 3216 FEES Make check for $10 payable to "Corporation Division" NOTE: Filing fees may be paid with Visa or MasterCard. The card number and expiration date should be submitted on a separate sheet for your protection. 14 EX-99.T3A33 32 exhibit_t3a-33.txt Exhibit T3A-33 CERTIFICATE OF AMENDMENT STOCK CORPORATION Office of the Secretary of the State 30 Trinity Street / P.O. Box 150470/ Hartford, CT 06115-0470 /Rev. 12/1999 Space For Office Use Only 1. NAME OF CORPORATION: Resource Recovery Systems of Connecticut, Inc. 2. THE CERTIFICATE OF INCORPORATION IS (check A., B. or C.): X A. AMENDED. B. AMENDED AND RESTATED. C. RESTATED. 3. TEXT OF EACH AMENDMENT/RESTATEMENT: Article First is amended to read: "First: The name of the corporation is Covanta Mid-Conn, Inc." 4. VOTE INFORMATION (check A., B. or C.): X A. The resolution was approved by shareholders as follows: (set forth all voting information required by Conn. Gen. Stat. Section 33-800 as amended in the space provided below) B. The amendment was adopted by the board of directors without shareholder action. No shareholder vote was required for adoption. C. The amendment was adopted by the incorporator's without shareholder action. No shareholder vote was required for adoption. 5. EXECUTION: Dated this 12th day of March, 2001. Patricia Collins Asst. Secretary /s/ Patricia Collins Print or type name Capacity of signatory Signature of signatory Name of Corporation RESOURCE RECOVERY SYSTEMS OF CONNECTICUT, INC. Document Filed Filing Date Total Fees Paid CERTIFICATE OF INCORPORATION 31/DEC/1992 $225.00 The information shown above pertains to documents filed in this office on account of the corporation Indicated. The filing date is the date endorsed on the document pursuant to section 33-285 or 33-422 of the Connecticut General Statutes. Any questions regarding this filing should be addressed to: THE ABOVE ADDRESS C T CORPORATION SYSTEM ONE COMMERCIAL PLAZA HARTFORD, CT 06103 CERTIFICATE OF INCORPORATION STOCK CORPORATION STATE OF CONNECTICUT SECRETARY OF THE STATE The undersigned incorporator(s) hereby form(s) a corporation under the Stock Corporation Act Of the State of Connecticut: o The name of the corporation is Resource Recovery Systems of Connecticut, Inc. o The nature of the business to be transacted, or the purposes to be promoted or carried out by the corporation, are as follows: To engage in any lawful act or activity for which corporations may be formed under the Connecticut Stock Corporation Act. The designation of each class of shares, the authorized number of shares of each such class, and the par value (if any) of each share thereof areas follows: l,000 Common Shares at $1.00 par value each. The terms, limitations and relative rights and preferences of each class of shares and series thereof (if any), or an express grant of authority to the board of directors pursuant to Section 33-341,1959 Supp. Conn. G.S., are as follows: The minimum amount of stated capital with which the corporation shall commence business is One Thousand dollars. (Not less than one thousand dollars) (7) Other provisions Dated this 18th day of December, 1992 I/We hereby declare, under the penalties of false statement, that the statements made in the foregoing certificate are true. This certificate of incorporation must be signed by each incorporator. NAME OF INCORPORATOR (PRINT OR TYPE) NAME OF INCORPORATOR (PRINT OR TYPE) NAME OF INCORPORATOR (PRINT OR TYPE) 1. Ann Marie Cummins 2. Charles Taylor 3. Helen Anagnostakas Signed (Incorporator) Signed (Incorporator) Signed (Incorporator) 1. /s/ Helen Anagnostakas 2. /s/ Charles Taylor 3. /s/ Helen Anagnostakas NAME OF INCORPORATOR (PRINT OR TYPE) NAME OF INCORPORATOR (PRINT OR TYPE) NAME OF INCORPORATOR (PRINT OR TYPE) 4. 5. 6. SIGNED (INCORPORATOR) SIGNED (INCORPORATOR) SIGNED (INCORPORATOR) 4. 5. 6. FOR OFFICE USE ONLY Rec; CC; GS; (Please provide filer's name and complete address for mailing receipt)
APPOINTMENT OF STATUTORY AGENT FOR SERVICE DOMESTIC CORPORATION 61-6 Rev. 6/38 Secretary of the State 30 Trinity Street Hartford, CT 06106 Name of Corporation: Resource Recovery Systems of Connecticut, Inc. Complete All Blanks The above corporation appoints as its statutory agent for service, of the following: Name of Natural Person Who is Resident of Connecticut Business Address Zip Code Residence Address Zip Code Name of Connecticut Corporation Address of Principal Office in Conn. (if none, enter address of appointee's statutory agent for service) Name of Corporation Address of Principal Office in Conn. (Not organized under the Laws of Conn.*) (If none, enter "Secretary of the State of Conn.") C T CORPORATION SYSTEM ONE COMMERCIAL PLAZA HARTFORD, CONNECTICUT 06103 * Which has procured a Certificate of Authority to transact business of conduct in this state. AUTHORIZATION Name of Incorporator Signed (Incorporator) Date (Print or Type) /s/ Ann Marie Cummins 12/18/92 Original Appointment (Must be Signed Ann Marie Cummins by a majority of Incorporators) Name of Incorporator Signed (Incorporator) (Print or Type) /s/ Charles Taylor 12/18/92 Charles Taylor Name of Incorporator Signed (Incorporator) (Print or Type) /s/ Helen Anagnostakos 12/18/92 Helen Anagnostakos Subsequent Appointment Name of President, Vice President or Secretary Date Signed (President, or Vice President or Secretary) Acceptance: Name of Statutory Agent for Service (Print or Type) Signed (Statutory Agent for C T CORPORATION SYSTEM Service) /s/ Richard R. Borovoy For Official Use Only Rec: CC; Richard R. Borovoy, Asst. Secy. Please provide filer's name and complete address for mailing receipt (8753-8)
CONFIRMATION OF FILING STATE OF CONNECTICUT AND RECEIPT OF FEES Office of The Secretary of the State 61-304 Rev. 4-90 30 TRINITY STREET, HARTFORD, CONNECTICUT 06106 NAME OF CORPORATION RESOURCE RECOVERY SYSTEMS OF CONNECTICUT, INC. DOCUMENT FIELD FILING DATE TOTAL FEES PAID ELECTION OF OFFICER(S) 30/JUN/1994 $25.00 The information shown above pertains to documents filed in this office for the corporation indicated above. The filing date is the date endorsed on the document pursuant to the Connecticut General Statutes. Any questions regarding this filing should be addressed to: THE ABOVE ADDRESS Commercial Recording Division, Secretary of the State's Office, 30 Trinity Street, Hartford, Connecticut 06106 RESOURCE RECOVERY SYSTEM OF CONN CT CORPORATION SYSTEM ONE COMMERCIAL PLAZA HARTFORD CT 06103
State of Connecticut OFFICE OF THE SECRETARY OF THE STATE 30 TRINITY STREET HARTFORD, CT 06106 NOTICE OF ELECTION OR APPOINTMENT OF OFFICER/DIRECTOR 1 Name of Corporation RESOURCE RECOVERY SYSTEMS OF CONNECTICUT, INC. Date of Residence 2 Name of Appointment Address Individual Title of Office or Election Business Address Both addresses must be completed - No Post Office Box number R. Richard Ablon Chairman of the Board January 8, c/o Ogden Corporation 97 Lloyd Road and Chief Exec. 1993 Two Pennsylvania Plaza Lloyd Officer/Director New York, NY 10121 Harbor, NY 11743 Scott G. Mackin President, Chief Operating January 8, c/o Ogden Projects, Inc. 19 Hall Road Officer/Director 1993 40 Lane Road Chatham, NJ Fairfield, NJ 07007-2615 07928 Bruce W. Stone Executive Vice President, January 8, c/o Ogden Projects, Inc. 53 Northway Managing Director/Director 1993 40 Lane Road Bronxville, Fairfield, NJ 07007-2615 NY 10708 William C. Mack Executive Vice President January 8, C/o Ogden Projects, Inc. 122 Harvest 1993 40 Lane Road Lane Fairfield, NJ 07007-2615 Lincoln Park, NJ 07035 Gloria A. Mills Executive Vice President - January 21, C/o Ogden Projects, Inc. 183 Business Development 1993 40 Lane Road Grandview Fairfield, NJ 07007-2615 Lane *[Note that as of January 8, 1993, Mahwah, NJ Ms. Mills' title was Executive 07430 Vice President - Marketing] 3 Click here if using an 81/2x 11 attachment of additional names, etc. See Conn. Gen, Stat.ss.1-9. We hereby declare, under the penalties of false statement, that For Official Use Only the statements made in the foregoing certificate are true. 4 /s/ Jeffrey R. Horowitz Senior Vice President Jeffrey R. Horowitz /s/ Timothy T. Simpson Assistant Secretary Timothy T. Simpson 5 Rec, CC, GS: (Type or Print) Please provide filer's name and complete address for mailing receipt
RESOURCE RECOVERY SYSTEMS OF CONNECTICUT, INC. NOTICE OF ELECTION OR APPOINTMENT OF OFFICER/DIRECTOR (CONTINUED) Name of Individual Title of Office Date of Residence Address Or Election Appointment Business Address Gary K. Crane Executive Vice President January 8, 1993 c/o Ogden Projects, 77 Clive Street -- Permitting and Inc. Metuchen, NJ 08840 Compliance 40 Lane Road Fairfield, NJ 07007-2615 Jeffrey L. Hahn Executive Vice President January 8, 1993 c/o Ogden Projects, 876 Mt. View Drive -- Technology Inc. Lafayette, CA 94549 40 Lane Road Fairfield, NJ 07007-2615 John M. Klett Executive Vice President January 8, 1993 c/o Ogden Projects, 100 Vail Road Inc. Parsippany, NJ 40 Lane Road 07054 Fairfield, NJ 07007-2615 William E. Whitman Executive Vice President,* January 21, 1994 c/o Ogden Projects, 3 Forest Place Chief Financial Officer Inc. Towaco, NJ 07082 and 40 Lane Road Treasurer Fairfield, NJ 07007-2615 * [Note that as of January 8, 1993, Mr. Whitman's title was Senior Vice President, Chief Financial Officer and Treasurer.] Jeffrey R. Horowitz Senior Vice President, January 8, c/o Ogden Projects, 11 Laurel Lane General, 1993 Inc. Bernardsville, NJ Counsel and Secretary 40 Lane Road 07924 Fairfield, NJ 07007-2615 Patricia M. Collins Vice President, Assistant January 8, c/o Ogden Projects, 425 Valley Road General 1993 Inc., Montclair, NJ 07043 Counsel, Assistant Secretary 40 Lane Road Fairfield, NJ 07007-2615 Timothy J. Simpson Vice President, Assistant January 8, c/o Ogden Projects, 7 Crestview Terrace General 1993 Inc., Convent Station, NJ Counsel, Assistant Secretary 40 Lane Road 07961 Fairfield, NJ 07007-2615 Kenneth G. Torosian Vice President and Controller January 8, c/o Ogden Projects, 125 E. Clifton Avenue 1993 Inc., 2nd Floor 40 Lane Road Clifton, NJ 07011 Fairfield, NJ 07007-2615 J.L. Effinger Assistant Secretary January 8, c/o Ogden Corporation, 25 Cove Road 1993 Two Pennsylvania Plaza Putnam Valley New York, NY 10121 NY 10579
APPOINTMENT OF STATUTORY AGENT FOR SERVICE DOMESTIC CORPORATION 61-6 Rev. 6/38 Secretary of the State State of Connecticut Name of Corporation: Resource Recovery Systems of Connecticut, Inc. Complete All Blanks The above corporation appoints as its statutory agent for service, of the following: Name of Natural Person Who is Resident of Connecticut Business Address Zip Code Residence Address Zip Code Name of Connecticut Corporation Address of Principal Office in Conn. (if none, enter address of appointee's statutory agent for service) Name of Corporation Address of Principal Office in Conn. (Not organized under the Laws of Conn.*) (If none, enter "Secretary of the State of Conn.") The Prentice-Hall Corporation System, Inc. 30 High Street HARTFORD, CONNECTICUT 06103 * Which has procured a Certificate of Authority to transact business of conduct in this state. Authorization Name of Incorporator (Print or Type) Signed (Incorporator) Date Original Appointment (Must be Signed Name of Incorporator (Print or Type) Signed (Incorporator) by a majority of Incorporators) Name of Incorporator (Print or Type) Signed (Incorporator) Subsequent Appointment Name of President, Vice President or Secretary D /s/ Pat Collins 1/15/96 Signed (President, or Vice President or Secretary) /s/ Pat Collins V-P Acceptance: Name of Statutory Agent for Service (Print or Type) Signed (Statutory Agent for Service) Vickie Schreiber Asst Vice President The Prentice-Hall Corporation, Inc. By For Official Use Only Rec: CC;
Please provide filer's name and complete address for mailing reciept EX-99.T3A34 33 exhibit_t3a-34.txt Exhibit T3A-34. ARTICLES OF AMENDMENT ______________________________________ (1) (2) ____________________________________________________________________________ a Maryland corporation hereby certifies to the State Department of Assessments and Taxation of Maryland that (3) The charter of the corporation is hereby amended as follows The amendment of the charter of the corporation has been approved by (4) shareholders and directors _________________________________________________________________ We the undersigned President and Secretary swear under penalties of perjury that the foregoing is a corporate act. (5)/s/ Patricia M. Collins (5)/s/ Scott G. Macklin - ------------------------------------- ------------------------------ Asst. Secretary, Patricia M. Collins President, Scott G. Mackin (6) Corporation Service Company - ------------------------------------ Attn: Elva Shipkowski 2711 Centerville Road Suite 400 Wilmington, DE 19808 DOCUMENT CODE 9A BUSINESS CODE _______ # D2905776 STATE OF MARYLAND DEPT OF ASSESSMENTS AND TAXATION CUST ID : 0000610772 WORK ORDER: 0000436545 DATE: 04-05-2001 01:53 PM AMT. PAID: $97.00 Close ___ Stock ___ Nonstoc ___ P.A. ____ Religious ___ Merging (Transferor) ________ Surviving (Transferee)______________________ _____________________________ ____________________________________________ _____________________________ ____________________________________________ _____________________________ ____________________________________________ FEES REMITTED Base Fee: 20 (New Name) Covanta Org. & Cap Fee:_______ Montgomery, Inc. Expedite Fee: 70 _____________________________________ Penalty:_______ _____________________________________ State Recordation Tax:_______ State Transfer Tax:_______ ICC Certified Copies: [X] Change of Name ______ Copy Fee: 7 ______ Change of Principal Office _________Certificates: ______ Change of Resident Agent Certificate Fee:____________ ______ Change of Resident Agent Address Other:____________ ______ Resignation of Resident Agent TOTAL FEES: 97 ______ Designation of Resident Agent and Resident Agent's Address ______ Change of Business Code ____________________________ Credit Card___ Check [X] Cash___ ___ Adoption of Assumed Name --- 1 Documents on 3 Checks ______________________ ______________________ ______________________ APPROVED BY: JP ______ Other Change(s) 2 ______________________ ______________________ KEYED BY: PA CODE 604 COMMENT(S): ATTENTION:___________________________ MAIL TO ADDRESS:_____________________ _____________________________________ _____________________________________ _____________________________________ _____________________________________ CHANGE OF RESIDENT AGENT & ADDRESS AND PRINCIPAL OFFICE OF OGDEN MARTIN SYSTEMS OF MONTGOMERY INC. APPROVED AND RECEIVED FOR RECORD BY THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND FEBRUARY 23, 1996 AT 2:56 O'CLOCK P.M. AS IN CONFORMITY WITH LAW AND ORDERED RECORDED. ORGANIZATION AND RECORDING SPECIAL CAPITALIZATION FEE PAID FEE PAID FEE PAID $_____________________ $ 10.00 $______________ D2905776 IT IS HEREBY CERTIFIED, THAT THE WITHIN INSTRUMENT, TOGETHER WITH ALL INDORSEMENTS THEREON, HAS BEEN RECEIVED, APPROVED AND RECORDED BY THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND. THE PRENTICE-HALL CORPORATION 3 SYSTEM, MARYLAND 11 E. CHASE ST. BALTIMORE MD 21202 16703091391 4 DOMESTIC CORPORATION NOTICE OF CHANGE OF PRINCIPAL OFFICE AND RESIDENT AGENT State Department of Assessments and Taxation Baltimore, Maryland Pursuant to the provisions of Section 2-108 of the Maryland General Corporation Law, the undersigned Maryland corporation hereby notifies the State Department of Assessments and Taxation of Maryland: (1) That under resolution adopted by the Board of Directors of the corporation on , 19 , a certified copy of which is filed herewith, the resident agent of the corporation in the State of Maryland has been changed to The Prentice-Hall Corporation System, Maryland, whose post office address is 11 East Chase Street, Baltimore, Maryland 21202. The resident agent so designated is a corporation of the State of Maryland. (2) That under resolution adopted by the Board of Directors of the corporation on , 19 , a certified copy of which is filed herewith, the principal office of the corporation in the State of Maryland has been changed from 32 South Street, Baltimore, Maryland to 11 East Chase Street, c/o The Prentice-Hall Corporation System, Maryland, Baltimore, Maryland 21202. [name of corporation] OGDEN MARTIN SYSTEMS OF MONTGOMERY, INC. By /s/ --------------------------- (Vice) President Dated: 1/15/1996 The undersigned, being the duly elected and acting Secretary of OGDEN MARTIN SYSTEMS OF MONTGOMERY, INC. hereby certifies that at a meting of the Board of Directors duly called and held on , 19 , the following resolutions were duty adopted and are now in full force and effect. MD BC D-:COA NOTICE OF CHANGE 01/93-2 5 "RESOLVED, that The Prentice-Hall Corporation System, Maryland, 11 East Chase Street, Baltimore, Maryland 21202 be and it hereby is designated as Resident Agent of the corporation in lieu of THE CORPORATION TRUST INCORPO and that the proper officer of the corporation is authorized to file a Notice to that effect. "FURTHER RESOLVED, that the principal office of the corporation in the State of Maryland be and it is hereby changed to 11 East Chase Street, c/o The Prentice-Hall Corporation System, Maryland, Baltimore, Maryland 21202 and that the proper officer of the corporation is authorized to file a Notice to that effect." WITNESS my hand and the seal of the corporation this 15th day of January, 1996. (CORPORATE SEAL) /s/ -------------------------- Secretary MD BC D-:COA NOTICE OF CHANGE 01/93-2 6 ARTICLES OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF MONTGOMERY, INC. APPROVED AND RECEIVED FOR RECORD BY THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND NOVEMBER 20, 1989 AT 10:42 O'CLOCK A.M. AS IN CONFORMITY WITH LAW AND ORDERED RECORDED ORGANIZATION AND RECORDING SPECIAL CAPITALIZATION FEE PAID FEE PAID FEE PAID $20.00 $ 20.00 $_______ D2905776 TO THE CLERK OF THE COURT OF BALTIMORE CITY IT IS HEREBY CERTIFIED, THAT THE WITHIN INSTRUMENT, TOGETHER WITH ALL INDORSEMENTS THEREON, HAS BEEN RECEIVED, APPROVED AND RECORDED BY THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND. RETURN TO: THE CORPORATION TRUST INCORPORATED 32 SOUTH STREET BALTIMORE MD 21202 10103031950 7 ARTICLES OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF MONTGOMERY, INC. ****** WE, THE UNDERSIGNED, GARY D. SHERMAN, whose post-office address is 1633 Broadway, New York, New York 10019, MEL C. MARAVILLA, whose post-office address is 1633 Broadway, New York, New York 10019, and MARISTELA OLIVA, whose post-office address is 1633 Broadway, New York, New York 10019, each being at least eighteen years of age, do, under and by virtue of the General Laws of the State of Maryland authorizing the formation of corporations, associate ourselves as incorporators with the intention of forming a corporation. FIRST: The name of the corporation is OGDEN MARTIN SYSTEMS OF MONTGOMERY, INC. SECOND: The purposes for which the corporation is formed are: To engage in any or all lawful business for which corporations may be organized under the Maryland General Corporation Law. THIRD: The post-office address of the principal office of the corporation in this State is c/o The Corporation Trust Incorporated, 32 South Street, Baltimore, Maryland 21202. The name of the resident agent of the corporation in this State is 8 The Corporation Trust Incorporated, a corporation of this State, and the post-office address of the resident agent is 32 South Street, Baltimore, Maryland 21202. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is one hundred (100) shares, all of one class, of the par value of One Dollar ($1.00) each and of the aggregate par value of One Hundred Dollars ($100.00) FIFTH: The number of directors of the corporation shall be five (5), which may be changed in accordance with the by-laws of the corporation. The names of the directors who shall act until the first annual meeting or until their successors are duly chosen and qualify are: RALPH B. ABLON, ROBERT M. DiGIA, SCOTT G. MACKIN, MARIA P. MONET and DAVID L. SOKOL. SIXTH: The following provisions are hereby adopted for the purpose of defining, limiting and regulating the powers of the corporation and of the directors and stockholders: No holder of shares of stock of any class shall be entitled as a matter of right to subscribe for or purchase, or receive any part of any new or additional issue of shares of stock of any class or of securities, convertible into shares of stock of any class, whether now or hereafter authorized or name of the resident agent of the corporation in this State is The Corporation Trust Incorporated, a corporation of this State, and 9 the post-office address of the resident agent is 32 South Street, Baltimore, Maryland 21202. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is one hundred (100) shares, all of one class, of the par value of One Dollar ($1.00) each and of the aggregate par value of One Hundred Dollars ($100.00) FIFTH: The number of directors of the corporation shall be five (5), which may be changed in accordance with the by-laws of the corporation. The names of the directors who shall act until the first annual meeting or until their successors are duly chosen and qualify are: RALPH B. ABLON, ROBERT M. DiGIA, SCOTT G. MACKIN, MARIA P. MONET and DAVID L. SOKOL. SIXTH: The following provisions are hereby adopted for the purpose of defining, limiting and regulating the powers of the corporation and of the directors and stockholders: No holder of shares of stock of any class shall be entitled as a matter of right to subscribe for or purchase or receive any part of any new or additional issue of shares of stock of any class or of securities convertible into shares of stock of any class, whether now or hereafter authorized or whether issued for money, by way of dividend. Notwithstanding any provision of law requiring a greater proportion than a majority of the votes of all classes 10 or of any class of stock entitled to be cast, to take or authorize any action, the corporation may take or authorize such action upon the concurrence of a majority of the aggregate number of votes entitled to be cast thereon. The corporation reserves the right from time to time make any amendment of its charter, now or hereafter authorized law, including any amendment which alters the contract rights, expressly set forth in its charter, of any outstanding stock. SEVENTH: The duration of the corporation shall be perpetual. IN WITNESS WHEREOF, the undersigned incorporators of OGDEN MARTIN SYSTEMS OF MONTGOMERY, INC. who executed the foregoing Articles of Incorporation hereby acknowledge the same to be their act and further acknowledge that, to the best of their knowledge the matters and facts set forth therein are true in all material respects under the penalties of perjury. Dated the 14th day of November, 1989. /s/ Gary D. Sherman ------------------------------------- Gary D. Sherman /s/ Mel C. Maravilla ------------------------------------- Mel C. Maravilla /s/ Maristela Oliva ------------------------------------- Maristela Oliva 11 CONSENT TO USE OF NAME OGDEN MARTIN SYSTEMS, INC. , a corporation organized under the laws of the State of Delaware/and qualified in Maryland , hereby consents to the organization of Ogden Martin Systems of Montgomery, Inc. in the State of Maryland. IN WITNESS WHEREOF, the said Ogden Martin Systems, Inc. has caused this consent to be executed by its Vice president and attested under its corporate seal by its Assistant secretary, this 17th day of November, 1989. OGDEN MARTIN SYSTEMS, INC. By /s/ Robert M. DiGia ---------------------------------- Robert M. DiGia, Vice President Attest: /s/ J.L. Effinger - ------------------------------------ J.L. Effinger, Assistant Secretary (SEAL) 12 EX-99.T3A35 34 exhibit_t3a-35.txt Exhibit T3A-35. Delaware PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA NEW MARTINSVILLE HYDROELECTRIC CORPORATION" AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-FIFTH DAY OF FEBRUARY, A.D. 1986, AT 10 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, FILED THE SIXTH DAY OF MAY, A.D. 1986, AT 10 O'CLOCK AM. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTIETH DAY OF JANUARY, A.D. 1993, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "CATALYST NEW MARTINSVILLE HYDROELECTRIC CORPORATION" TO "COVANTA NEW MARTINSVILLE HYDROELECTRIC CORPORATION", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ----------------------------------------- HARRIET SMITH WINDSOR, Exhibit T3A-35. SECRETARY OF STATE 2084251 8100H AUTHENTICATION: 2951503 040135436 DATE: 02-25-04 Exhibit T3A-35. CERTIFICATE OF INCORPORATION OF CATALYST NEW MARTINSVILLE HYDROELECTRIC CORPORATION FIRST: The name of the Corporation is CATALYST NEW MARTINSVILLE HYDROELECTRIC CORPORATION. SECOND: The address of the Corporation's registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business or purposes to be conducted or promoted are to engage exclusively in the following business and financial activities: (a) To develop construct, finance, own and/or operate, or to arrange for the development, construction, financing, and/or operation of, a 34-megawatt hydroelectric generating plant to be located at Hannibal Locks & Dam on the Ohio River in Wetzel County, West Virginia. (b) To conduct any ancillary business necessary to accomplish the purposes set forth in (a) above. (c) Subject to the limitations set forth in (a) and (b) above, to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total authorized capital stock of the Corporation shall be Five Thousand (5,000) shares of Common Stock, without par value. FIFTH: The name and mailing address of the sole incorporator is as follows: Exhibit T3A-35. Name Mailing Address Nancy M. Persechino 30 Rockefeller Plaza 23rd Floor New York, New York 10112 SIXTH: The Board of Directors is authorized to adopt, amend or repeal the ByLaws of the Corporation. SEVENTH: The number of directors of the Corporation shall be such as from time to time shall be fixed by the By-Laws. Any one or more directors may be removed, with or without cause, by the vote or written consent of the holders of a majority of the shares entitled to vote at an election of directors. EIGHTH: Meetings of stockholders shall be held at such place, within or without the State of Delaware, as may be designated by or in the manner provided by the By-Laws, or, if not so designated, at the registered office of the Corporation in the State of Delaware. Election of directors need not be by written ballot unless and to the extent that the By-Laws so provide. NINTH: Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said Exhibit T3A-35. compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation. TENTH: The Corporation reserves the right to amend, alter or repeal any provision contained in this Certificate of Incorporation now or hereafter prescribed by statute, and all rights of stockholders herein are subject to this reservation. THE UNDERSIGNED, being the sole incorporator above named, for the purpose of forming a corporation pursuant to the General corporation of Law of the state of Delaware, has signed this instrument on the 24th day of February, 1986 and does hereby acknowledge that it is her act and deed and that the facts stated herein are true. /s/ Nancy M. Persechino -------------------------------- Nancy M. Persechino Sole Incorporator 30 Rockefeller Plaza 23rd Floor New York, New York 10112 Exhibit T3A-35. CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF CATALYST NEW MARTINSVILLE HYDROELECTRIC CORPORATION Pursuant to Section 241 of the General Corporation Law of the State of Delaware CATALYST NEW MARTINSVILLE HYDROELECTRIC CORPORATION, a corporation organized and existing under the General Corporation Law of the State of Delaware (hereinafter called the "Corporation"), DOES HEREBY CERTIFY THAT: FIRST: The Board of Directors of the Corporation adopted by unanimous written consent dated March 28, 1986, resolutions setting forth an amendment to the Certificate of Incorporation of the Corporation. SECOND: Said amendment would amend the Certificate of Incorporation of the Corporation by deleting Article NINTH in its entirety. THIRD: Said amendment was duly adopted in accordance with the provisions of Section 241 of the General Corporation Law of the State of Delaware. Exhibit T3A-35. FOURTH: The Corporation has not received any payment for any of its stock as of the date hereof. FIFTH: The capital of the Corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, the undersigned, being the President of the Corporation. has signed this instrument the 28th day of March, 1986 and does thereby approve and acknowledge under penalties of perjury, that this instrument is the act and deed of the Corporation and that the facts stated therein are true. CATALYST NEW MARTINSVILLE HYDROELECTRIC CORPORATION By: /s/ John D. Kuhns ------------------------- John D.Kuhns President Attest: /s/ Lawrence S. Cohen ---------------------------- Lawrence S. Cohen Secretary Exhibit T3A-35. 2 Exhibit T3A-35. STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED O9:00 AM 01/20/l993 930225136 -- 2084251 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is CATALYST NEW MARTINSVILLE HYDROELECTRIC CORPORATION 2. The registered office of the corporation within the State of Delaware is hereby changed to 32 Loockerman Square, Suite L-100, City of Dover 19901, County of Kent. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on , 1993 /s/ Peter Allen ----------------------------- Peter Allen, Vice - President Attest: /s/ Jerry L. Effinger - -------------------------------- Exhibit T3A-35. Jerry L.Effinger Asst.Secretary DE certificate of change 4/91 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF CATALYST NEW MARTINSVILLE HYDROELECTRIC CORPORATION It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is CATALYST NEW MARTINSVILLE HYDROELECTRIC CORPORATION 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA NEW MARTINSVILLE HYDROELECTRIC CORPORATION 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the Exhibit T3A-35. General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ___,2001. /s/ Patricia Collins ------------------------- Name: Patricia Collins Title: Asst. Secretary STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/2001 020126410 -- 2084251 EX-99.T3A36 35 exhibit_t3a-36.txt Exhibit T3A-36. ARTICLES OF INCORPORATION OF NEW MARTINSVILLE HYDRO-OPERATIONS CORPORATION The undersigned, acting as Incorporator of a corporation under Section 27, Article 1, Chapter 31 of the Code of West Virginia adopts the following Articles of Incorporation for such corporation: I. The name of the corporation is NEW MARTINSVILLE HDRO-OPERATIONS CORPORATION (the "Corporation"). II. The address of the principal office of the Corporation is c/o Keycor, 777 E. William, Suite 2110, P.O. Box 3056, Carson City, Nevada, 89702. III. The purpose or purposes for which the Corporation is formed are as follows: To operate and maintain a hydroelectric project located in New Martinsville, West Virginia, and to engage in the transaction of any or all lawful business relating thereto for which corporations may be incorporated under the provisions of the West Virginia Business Corporation Act. IV. Provisions limiting or denying shareholders pre-emptive rights are nonexistent. V. The aggregate amount of shares which the Corporation shall have authority to issue is 1,000 common shares. The per value of each of such common shares shall be $.01. VI. The name and address of the Incorporator is as follows:
Name Address ---- ------- Robert M. White 3000 One Shell Plaza 910 Louisiana Houston, Texas
VII. The existence of the Corporation is to be perpetual. VIII. The name and address of the person appointed to whom shall be sent notice or process served upon, or service of which is accepted by, the secretary of state is CT Corporation System, 1200 Charleston National Plaza, Charleston, West Virginia 25301. IX. The number of Directors constituting the initial Board of Directors of the corporation is one, and the name and address of the person who is to serve as director until the first annual meeting of shareholders or until his successor or successors are elected and shall quality is:
Name Address ---- ------- Robert P. Barksdale 245 Park Avenue New York, NY 10167
I, THE UNDERSIGNED, for the purpose of forming a Corporation under the laws of the State of West Virginia, do make and file these ARTICLES OF INCORPORATION, and I have according hereunto set my hand this 8th day of March 1989. /s/ Robert M. White ---------------------------- Robert M. White These Articles of incorporation were prepared by: Robert M. White 3000 One Shell Plaza 910 Louisiana Houston, Texas 77002 2 EX-99.T3A38 36 exhibit_t3a-38.txt Exhibit T3A-38. DELAWARE The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA ONONDAGA FIVE CORP." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE FIRST DAY OF SEPTEMBER, A.D. 1992, AT 3 O'CLOCK P.M. CERTIFICATE OF CORRECTION, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS OF ONONDAGO FIVE CORP." TO "OGDEN MARTIN SYSTEMS OF ONONDAGA FIVE CORP.", FILED THE SECOND DAY OF SEPTEMBER, A.D. 1992, AT 4:30 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTY-SECOND DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS OF ONONDAGA FIVE CORP." TO "COVANTA ONONDAGA FIVE CORP.", FILED THE FOURTEENTH DAY OF MARCH, A. D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Seal of the Secretary Office /s/ Harriet Smith Windsor ------------------------------------- Harriet Smith Windsor, Secretary of State 2308325 8100H AUTHENTICATION: 2951524 040135447 DATE: 02-25-04 1 Exhibit T3A-38. 2 Exhibit T3A-38. CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGO FIVE CORP. 1. The name of the corporation is: OGDEN MARTIN SYSTEMS OF ONONDAGO FIVE CORP. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purpose to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the per value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars ($100.00). 5. The board of directors is authorized to make, alter or repeal the by-law, at the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: M.C. Kinnamon Corporation Trust Center 1209 Orange Street Wilmington. Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the Central Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 1st day of September, 1992. 3 Exhibit T3A-38. /s/ H.C. Kinnamon ------------------------------------- H. C. Kinnamon 4 Exhibit T3A-38. STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 04:30 PM 09/02/1992 732246016 -- 2308325 CERTIFICATE OF CORRECTION FILED TO CORRECT A CERTAIN ERROR IN THE CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGO FIVE CORP. FILED IN THE OFFICE OF THE SECRETARY OF STATE OF DELAWARE ON SEPTEMBER 1, 1992. OGDEN MARTIN SYSTEMS OF ONONDAGO FIVE CORP., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: 1. The name of the corporation is OGDEN MARTIN SYSTEMS OF ONONDAGO FIVE CORP. 2. That a Certificate of Incorporation was filed by the Secretary of State of Delaware on September 1, 1992, and that said certificate requires correction as permitted by subsection (F) of section 103 of The General Corporation Law of the State of Delaware. 3. The inaccuracy or defect of said certificate to be corrected is as follows: To correct a typographical error in the name of the company in the Heading and in Article 1. of the Certificate of Incorporation. 4. The Heading of the certificate is corrected to read as follows: CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGA FIVE CORP. 5 Exhibit T3A-38. and Article 1. of the certificate is corrected to read as follows: 6 Exhibit T3A-38. 1. The name of the corporation is: OGDEN MARTIN SYSTEMS OF ONONDAGA FIVE CORP. IN WITNESS WHEREOF, I, have signed this certificate this 2nd day of September, 1992. /s/ M.C. Kinnamon ------------------------------------- M. C. Kinnamon 7 Exhibit T3A-38. CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN MARTIN SYSTEMS OF ONONDAGA FIVE CORP. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on /s/ January 15, 19 /s/ 96 /s/ Timothy J. Simpson ------------------------------------- Authorized Officer STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 02/22/1996 960050559 -- 2309325 8 Exhibit T3A-38. CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGA FIVE CORP. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN MARTIN SYSTEMS OF ONONDAGA FIVE CORP. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ONONDAGA FIVE CORP. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins ------------------------------------- Name: Patricia Collins Title: Asst. Secretary STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/2001 010126468 -- 2308325 9 EX-99.T3A39 37 exhibit_t3a-39.txt Exhibit T3A-39 Delaware Page 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA ONONDAGA FOUR CORP." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE FIRST DAY OF SEPTEMBER, A.D. 1992, AT 3 O'CLOCK P.M. CERTIFICATE OF CORRECTION, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS OF ONONDAGO FOUR CORP." TO "OGDEN MARTIN SYSTEMS OF ONONDAGA FOUR CORP. ", FILED THE SECOND DAY OF SEPTEMBER, A. D. 1992, AT 4:30 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTY-SECOND DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS OF ONONDAGA FOUR CORP." TO "COVANTA ONONDAGA FOUR CORP.", FILED THE FOURTEENTH DAY OF MARCH, A. D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ----------------------------------- Harriet Smith Windsor, Secretary of State 2308324 8100H AUTHENTICATION: 2951527 040135449 DATE: 02-25-04 1 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 03:00 PM 09/01/1992 732245021 - 2308324 CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGO FOUR CORP. 1. The name of the corporation is: OGDEN MARTIN SYSTEMS OF ONONDAGO FOUR CORP. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purpose to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars ($100.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the. incorporator is: M. C. Kinnamon Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 1st day of September, 1992. /s/ M. C. Kinnamon --------------------- M. C. Kinnamon 2 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 03:00 PM 09/01/1992 732245021 - 2308324 CERTIFICATE OF CORRECTION FILED TO CORRECT A CERTAIN ERROR IN THE CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGO FOUR CORP. FILED IN THE OFFICE OF THE SECRETARY OF STATE OF DELAWARE ON SEPTEMBER 1, 1992. OGDEN MARTIN SYSTEMS OF ONONDAGO FOUR CORP., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: 1. The name of the corporation is OGDEN MARTIN SYSTEMS OF ONONDAGO FOUR CORP. 2. That a Certificate of Incorporation was filed by the Secretary of State of Delaware on September 1, 1992, and that said certificate requires correction as permitted by subsection (F) of section 103 of The General Corporation Law of the State of Delaware. 3. The inaccuracy or defect of said certificate to be corrected is as follows: To correct a typographical error in the name of the company in the Heading and in Article 1 of the Certificate of Incorporation. 3 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 03:00 PM 09/01/1992 732245021 - 2308324 4. The Heading of the certificate is corrected to read as follows: CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGA FOUR CORP. and Article 1 of the certificate is corrected to read as follows: 1. The name of the corporation is: OGDEN MARTIN SYSTEMS OF ONONDAGA FOUR CORP. IN WITNESS WHEREOF, I have signed this certificate this 2nd day of September, 1992. /s/ M. C. Kinnamon ------------------------- M. C. Kinnamon 4 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 03:00 PM 09/01/1992 732245021 - 2308324 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN MARTIN SYSTEMS OF ONONDAGA FOUR CORP. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System Inc., the business offices of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15, 1996. /s/ __________________________ Authorized Officer 5 EXHIBIT T3B-65 ERC ENERGY II, INC. BY-LAWS ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. 1 Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by 2 proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder or record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. 3 ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall not be less than three nor more than 6. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors arc duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. 4 MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. 5 Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, 6 recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not 7 be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. The board of directors may also choose additional vice presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any 8 time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the 9 corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may he attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. 10 Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertified stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the 11 corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the hooks of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the 12 meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on the books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 13 ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall coincide with the calendar year unless otherwise fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director, officer, employee or agent of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer, employee or agent against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any and all expenses (including attorneys' fees) incurred by any such person in defending or settling any such action, 14 suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses if it shall ultimately be determined by a final judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent Corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation. ARTICLE VII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special 15 meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 16 EX-99.T3A40 38 exhibit_t3a-40.txt Delaware The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA ONONDAGA OPERATIONS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE SIXTH DAY OF october, a.d. 1994, at 2 o'clock p.m. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OMS ONONDAGA OPERATIONS, INC." TO "COVANTA ONONDAGA OPERATIONS, INC.", FILED THE FOURTEENTH DAY OF MARCH, A. D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ---------------------------------------- Harriet Smith Windsor, Secretary of State AUTHENTICATION: 2951534 1 DATE: 02-25-04 CERTIFICATE OF INCORPORATION OF OMS ONONDAGA OPERATIONS, INC. ***** 1. The name of the corporation is OMS ONONDAGA OPERATIONS, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is 100 common stock; all of such shares shall be One Dollar ($1.00) par value. 5. The name and mailing address of the sole incorporator is as follows: NAME MAILING ADDRESS Jennifer Leigh Morgia CT Corporation System 1633 Broadway New York, New York 10019 6. The corporation is to have perpetual existence. THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does make this certificate, hereby declaring and certifying that this is her act and deed and the facts herein stated are true, and accordingly have hereunto set her hand this 6th day of October, 1994. /s/ Jennifer Leigh Morgia ------------------------- Jennifer Leigh Morgia, Incorporator STATE OF DELAUARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 02/06/1996 960034677 - 2441463 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OMS ONONDAGA OPERATIONS, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on January 15, 1996. /s/ --------------------------------------- Authorized Officer STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 02/06/1996 960034677 - 2441463 CERTiFICATE OF AMENDMENT OF CERTIFICATE OF iNCORPORATION OF Exhibit T3A-40 -------------- OMS ONONDAGA OPERATIONS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OMS ONONDAGA OPERATIONS, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ONONDAGA OPERATIONS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March __, 2001. /s/ Patricia Collins ----------------------- Name: Patricia Collins Title: Asst. Secretary EX-99.T3A41 39 exhibit_t3a-41.txt Exhibit T3A-41. DELAWARE PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA ONONDAGA THREE CORP." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE FIRST DAY OF SEPTEMBER, A.D. 1992, AT 3 O'CLOCK P.M. CERTIFICATE OF CORRECTION, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS OF ONONDAGO THREE CORP." TO "OGDEN MARTIN SYSTEMS OF ONONDAGA THREE CORP.", FILED THE SECOND DAY OF SEPTEMBER, A.D. 1992, AT 4:30 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTY-SECOND DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS OF ONONDAGA THREE CORP." TO "COVANTA ONONDAGA THREE CORP.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. 1 Exhibit T3A-41. CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGO THREE CORP. 1. The name of the corporation is: OGDEN MARTIN SYSTEMS OF ONONDAGO THREE CORP. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars ($100.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: M.C. Kinnamon Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 1st day of September, 1992. /s/ M.C. Kinnamon ---------------------------------- M.C. Kinnamon 2 Exhibit T3A-41. CERTIFICATE OF CORRECTION FILED TO CORRECT A CERTAIN ERROR IN THE CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGO THREE CORP. FILED IN THE OFFICE OP THE SECRETARY OF STATE OF DELAWARE ON SEPTEMBER 1, 1992. OGDEN MARTIN SYSTEMS OF ONONDAGO THREE CORP., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: 1. The name of the corporation is OGDEN MARTIN SYSTEMS OF ONONDAGO THREE CORP. 2. That a Certificate of Incorporation was filed by the Secretary of State of Delaware on September 1, 1992, and that said certificate requires correction as permitted by subsection (F) of section 103 of The General Corporation Law of the State of Delaware. 3. The inaccuracy or defect of said certificate to be corrected is as follows: To correct a typographical error in the name of the company in the Heading and in Article 1. of the Certificate of Incorporation. 4. The Heading of the certificate is corrected to read as follows: CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGA THREE CORP. and Article 1. of the certificate is corrected to read as follows: 3 Exhibit T3A-41. 1. The name of the corporation is: OGDEN MARTIN SYSTEMS OF ONONDAGA THREE CORP. IN WITNESS WHEREOF, I, have signed this certificate this 2nd day of September, 1992. /s/ M.C. Kinnamon ----------------------------- M. C. Kinnamon 4 Exhibit T3A-77. CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN MARTIN SYSTEMS OF ONONDAGA THREE CORP. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15/98 /s/ ______________________________ Authorized Officer 5 Exhibit T3A-41. CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGA THREE CORP. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN MARTIN SYSTEMS OF ONONDAGA THREE CORP. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ONONDAGA THREE CORP. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ____, 2001. /s/ Patricia Collins --------------------------------- Name: Patricia Collins Title: Asst. Secretary 6 EX-99.T3A42 40 exhibit_t3a-42.txt Exhibit T3A-42. DELAWARE PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA ONONDAGA TWO CORP." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE FIRST DAY OF SEPTEMBER, A.D. 1992, AT 3 O'CLOCK PM. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTY-SECOND DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS OF ONONDAGA TWO CORP." TO "COVANTA ONONDAGA TWO CORP.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK AM. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ---------------------------- Harriet Smith Windsor, Secretary of State 2308322 8100H AUTHENTICATION: 2951543 040135471 DATE: 02-25-04 2 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 03:00 PM 09/01/1992 732245019 - 2308322 CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGA TWO CORP. 1. The name of the corporation is: OGDEN MARTIN SYSTEMS OF ONONDAGA TWO CORP. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars ($100.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: M.C. Kinnamon Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and 3 the facts herein stated are true, and accordingly have hereunto set my hand this 1st day of September, 1992. /s/ M.C. Kinnamon ---------------------------------- M.C. Kinnamon 4 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN MARTIN SYSTEMS OF ONONDAGA TWO CORP. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15/1996 /s/ ____________________________________ Authorized Officer DE BC D-: COA CERTIF OF CHANGE 4/91 5 6 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGA TWO CORP. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN MARTIN SYSTEMS OF ONONDAGA TWO CORP. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ONONDAGA TWO CORP. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ____, 2001. /s/ Patricia Collins ------------------------------ Name: Patricia Collins Title: Asst. Secretary 7 EX-99.T3A43 41 exhibit_t3a-43.txt Exhibit T3A-43. State of New York } ss: Department of State } I hereby certify that the annexed copy has been compared with the original document filed by the Department of State and that the same is a true copy of said original. Witness my hand and seal of the Department of State on FEBRUARY 25, 2004 Secretary of State DOS-200 (Rev. 03/02) 1 Exhibit T3A-43. CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. UNDER SECTION 402 OF THE BUSINESS CORPORATION LAW * * * * * WE, THE UNDERSIGNED, all of the age of eighteen years or over, for the purpose of forming a corporation pursuant to Section 402 of the Business Corporation Law of New York, do hereby certify: FIRST: The name of the corporation is OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. SECOND: The purposes for which it is formed are: To engage in any lawful act or activity for which corporations may be organized under the Business Corporation Law provided that it is not formed to engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body, without such consent or approval first being obtained. THIRD: The office of the corporation is to be located in the County of New York, State of New York. FOURTH: The aggregate number of shares which the corporation shall have authority to issue is 100 of the par value of one Dollar each. FIFTH: The Secretary of State is designated as the agent of the corporation upon whom process against the corporation may be served. The post office address to which Secretary of State shall 1 Exhibit T3A-43. mail a copy of any process against the corporation served upon him is: c/o C T Corporation System, 1633 Broadway, New York, New York 10019. SIXTH: The name and address of the registered agent which is to be the agent of the corporation upon whom process against it may be served, are C T CORPORATION SYSTEM 1633 Broadway, New York, New York 10019. IN WITNESS WHEREOF we have made and signed this Certificate of Incorporation this 29th day of June A.D. 1989. /s/ THOMAS C. TOTARO ------------------------------------ Thomas C. Totaro 1633 Broadway, New York, New York 10019 2 Exhibit T3A-43. STATE OF NEW YORK ) )SS: COUNTY OF NEW YORK ) On this 29th day of June, l989, before me personally came THOMAS C. TOTARO, to me known, and known to me to be the person described in and who executed the foregoing certificate, and he duly acknowledged to me that he had executed the same. /s/ RICHARD P. BOROVOY -------------------------------------- Richard P. Borovoy Notary Public Richard P. Borovoy Notary Public, State of New York No. 24-4630102 Qualified in Kings County Cert Filed New York County Commission Expires February 28, 1991 1 Exhibit T3A-43. Certificate OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. UNDER SECTION 402 OF THE BUSINESS CORPORATION LAW STATE OF NEW YORK DEPARTMENT OF STATE FILED: JUN 30, 1989 AMT. OF CHECK $ 130 FILING FEE $ 100 TAX $ 10 COUNTY FEE $ COPYS $ 10 CERT $ REFUND $ SPEC HANDLES 10 BY:
Legal Department Ogden Corporation Attn: Ellen Entriken, L.A. 2 Pennsylvania Avenue New York, NY 10121 1 Exhibit T3A-43. State of New York } ss: Department of State } I hereby certify that the annexed copy has been compared with the original document filed by the Department of State and that the same is a true copy of said original. Witness my hand and seal of the Department of State on FEBRUARY 25, 2004 Secretary of State 1 Exhibit T3A-43. CERTIFICATE OF CHANGE OF OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. (Under Section 805-A of the Business Corporation Law) FIRST: The name of the corporation is OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. SECOND: The certificate of Incorporation of the, corporation was filed by the Department of State on JUNE 30, 1989. THIRD: The certificate of incorporation of the corporation is hereby changed, pursuant to the authorization of the Board of Directors of the corporation, so as to change the post office address to which the Secretary of State shall mail a copy of any process against the corporation served upon him and to change the designation of registered agent. To accomplish said changes: (a) The following statement of said post office address to which the Secretary of State shall mail a copy of process is substituted: "The post office address within the State of New York to which the Secretary of State shall mail a copy of any process against the corporation served upon him is do The Prentice-Hall Corporation System, Inc., 500 Central Avenue, Albany, New York 12206-2290." (b) The following statement of designation of registered agent is substituted: "The name and address of the registered agent of the corporation are The Prentice-Hall Corporation System, Inc., 500 Central Avenue, Albany, New York 12206-2290. Said registered agent is to be the registered agent upon which process against the corporation may be served." 1 Exhibit T3A-43. IN WITNESS WHEREOF, we have subscribed this document on the date hereinafter set forth and do hereby affirm, under the penalties of perjury, that the statements contained therein have been examined by us and are true and correct. Dated: February 29, 1996 Name of Signer: /s/ ------------------------------------ Jeffrey R. Horowitz, Vice President Name of Signer: /s/ ------------------------------------ Timothy J. Simpson Assistant Secretary 1 Exhibit T3A-43. CERTIFICATE OF CHANGE OF OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. (Section 805-A of the Business Corporation Law) Filer: Ogden Projects, Inc. 40 Lane Road Fairfield, NJ-7007-2615 STATE OF NEW YORK DEPARTMENT OF STATE FILED: MAR 29, 1996 TAX $____________________ BY:______________________ 1 Exhibit T3A-43. State of New York } ss: Department of State } I hereby certify that the annexed copy has been compared with the original document filed by the Department of State and that the same is a true copy of said original. Witness my hand and seal of the Department of State on FEBRUARY 25, 2004 Secretary of State 1 Exhibit T3A-43. Certificate of Change of OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. (Under Section 805-A of the Business Corporation Law) FIRST: The name of the corporation (the "Corporation") is OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. SECOND: The certificate of incorporation of the corporation was filed by the Department of State on 06-30-1989 THIRD: The certificate of incorporation of the corporation is hereby changed, so as to change the post office address to which the Secretary of State of New York shall mail a copy of any process against the corporation served upon said Secretary of State and to change the address of the registered agent; and to accomplish said changes, the statements in the certificate of incorporation relating to said post office address and the designation of registered agent are hereby stricken and the following statements are substituted in lieu thereof: "The post office address within the State of New York to which the Secretary of State of New York shall mail a copy of any process against the corporation served upon him is c/o THE PRENTICE-HALL CORPORATION SYSTEM, INC. 80 State Street, Albany, New York 12201" "The name and the address of the registered agent of the corporation are THE PRENTICE-HALL CORPORATION SYSTEM, INC. 80 State Street, Albany, New York 12207. Said registered agent is to be the agent upon which process against the corporation may be served." FOURTH: A notice of the proposed changes was mailed by the undersigned to the corporation not less than 30 days prior to the date of the delivery of this certificate to the Department of State the corporation has not objected thereto. The person signing this certificate is the agent of the corporation to whose address the Secretary of State of New York is required to mail copies of process and the registered agent of the corporation. 1 Exhibit T3A-43. IN WITNESS WHEREOF, we have subscribed this document on the date set forth below and do hereby affirm, under the penalties of perjury, that the statements contained therein have been examined by us and are true and correct. Date: March 3, 1997 THE PRENTICE-HALL CORPORATION SYSTEM. INC. /s/ William G. Popeo -------------------------------- William G. Popeo, Vice President /s/ John H. Pelletier ---------------------------------- John H. Pelletier, Asst. Secretary 2 Exhibit T3A-43. CERTIFICATE OF CHANGE of OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. (Under Section 805-A of the Business Corporation Law) STATE OF NEW YORK DEPARTMENT OF STATE FILED: JUL 05, 1997 TAX $________________ BY:__________________ Anne Grigorakos THE PRENTICE-HALL CORPORATION SYSTEM, INC 375 Hudson Street, 11th Floor New York, New York 10014 3 Exhibit T3A-43. State of New York } ss: Department of State } I hereby certify that the annexed copy has been compared with the original document filed by the Department of State and that the same is a true copy of said original. Witness my hand and seal of the Department of State on FEBRUARY 25, 2004 Secretary of State 1 Exhibit T3A-43. Certificate of Amendment of the Certificate of Incorporation of OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. Under Section 805 of the Business Corporation Law FIRST: The name of the corporation is Ogden Martin Systems of Onondaga, Inc. SECOND: Certificate of Incorporation was filed with the Secretary of State of New York on June 30th, 1989. THIRD: The Certificate of Incorporation is amended to change the name of the FOURTH: To accomplish the foregoing amendment, Article First of the Certificate of Incorporation relating to name is hereby stricken out in its entirety, and the following new Article is substituted in lieu thereof: FIRST: The name of the corporation is Covanta Onondaga, Inc. FIFTH: The manner in which the foregoing amendment of the certificate of incorporation was authorized is as follows: By vote of the Board of Directors followed by a vote of the shareholders of all outstanding shares. IN WITNESS WHEREOF, I have subscribed this document on March 12, 2001 and do hereby affirm, under the penalties of perjury, that the statements contained herein have been examined by us and are true and correct /s/ Patricia Collins ----------------------------------- Name: Patricia Collins Title: Asst. Secretary 1 Exhibit T3A-43. - -------------------------------------------------------------------------------- CERTIFICATE OF AMENDMENT OF OGDEN MARTIN SYSTEMS OF ONODAGA, INC. Under Section 805 of the Business Corporation Law - -------------------------------------------------------------------------------- FILED BY: Peter Kaiser, Legal Assistant LEBOEUF LAMB GREENE & MACRAE L.L.P. 125 West 55th Street New York, NY 10019-5389 Cust. Ref#077498DAV GIR DRAWDOWN 1 EX-99.T3A44 42 exhibit_t3a-44.txt Exhibit T3A144 FILED June 23 1998 Lonna B. Hooks Secretary of State L-100 NJSA 42 (2/94) New Jersey Department of State Division of Commercial Recording Certificate of Formation, Limited Liability Company This form may be used to record the formation of a Limited Liability Company under and by virtue of New Jersey State Law. Applicants must insure strict compliance with NJSA 42, the New Jersey Limited Liability Company Act, and insure that all applicable filing requirements are met. Applicants are advised to seek out private legal assistance before submitting filings to the Secretary's office. 1. Name of Limited Liability Company: Ogden Martin Operations of Union LLC 2. The purpose for which this Limited Liability Company is organized is: it will be the operating company for our union facility. 3. Date of formation: Upon filing 4. Registered Agent Name & Address (must be in NJ): Corporation Service Company 830 Bear Tavern Road West Trenton, New Jersey 08628 5. Dissolution date: Perpetual 6. Other provisions (list below or attach to certificate): n/a The undersigned represent(s) that this Limited Liability Company has two or more members, and that this filing complies with requirements detailed in NJSA 42. The undersigned hereby represent(s) that they are authorized to sign this certificate on behalf of the Limited Liability Company. Signature: /s/ Patricia Collins Date: 6/22/98 Patricia M. Collins AMENDED AND RESTATED CERTIFICATE OF FORM4TION OGDEN MARTIN OPERATIONS OF UNION LLC Ogden Martin Operations of Union L.L.C, a New Jersey limited liability company (the "Company"), desires to amend and restate its Certificate of Formation currently in effect and as hereinafter amended. This Amended and Restated Certificate of Formation shall be effective upon its filing with the New Jersey Secretary of State. 1. Name of Limited Liability Company: Ogden Martin Operations of Union LLC 2. The purpose for which the Company is organized is: to operate, maintain, repair and provide any other services in connection with the operation of the waste-to-energy facility located at 1499 Route I North, City of Rahway, County of Union, New Jersey, pursuant to an Operating end Maintenance Agreement between the Company and Ogden Martin Systems of Union, Inc., and any amendment or supplement thereto, and to enter into any lawful transaction and engage in any lawful activity in furtherance of this purpose. 3. Date of formation: June 23, 1998. 4. Registered Agent Name and Address of Registered Office: Corporation Service Company 830 Bear Tavern Road West Trenton, NJ 08628 5. Dissolution Date: Perpetual. 6. Board of Managers: A Board of Managers shall have full authority over the management and direction of the business and operations of the Company, The undersigned represents that the Company has two or more members, and that this filing compiles with requirements detailed In NJSA 42. The undersigned, being an officer of the Company, hereby represents that this Amended and Restated Certificate of Formation has been duly authorized by the Board of Managers of the Company and that they are authorized to sign this Amended and Restated Certificate of Formation on behalf of the Company. /s/ Patricia M. Collins Patricia M. Collins Assistant Secretary Date: July 14, 1998 L-102 NJSA 42 (2/94) New Jersey Department of the Treasury Division of Revenue Certificate of Amendment, Limited Liability Company This form may be used to amend a Certificate of Formation of a Limited Liability Company on file with the Department of the Treasury. Applicants must insure strict compliance with NJSA 42, the New Jersey Limited Liability Act, and insure that all applicable filing requirements are met. 1. Name of Limited Liability Company; Ogden Martin Operations of Union, LLC 2. Identification Number: 3. New LLC Name (if applicable): Covanta Operations of Union, LLC 4. Effective Date: Upon filing 5. The Certificate of Formation is amended as follows (provide attachments if needed): The undersigned represent(s) that this filing complies with State law as detailed in NJSA 42 and that they are authorized to sign this form behalf of the Limited Liability Company. Name Date 3/1/01 STATE OF NEW JERSEY DEPARTMENT OF TREASURY FILING CERTIFICATION (CERTIFIED COPY) COVANTA OPERATIONS OF UNION, LLC I, the Treasurer of the State of New Jersey, do hereby certify, that the above named business did file and record in this department the below listed document(s) and that the foregoing is a true copy of the Certificate Of Formation Name Change Amended And Restated Certificate Of Formation as the same is taken from and compared with the original(s) filed in this office on the date set forth on each instrument and now remaining on file and of record in my office. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal at Trenton, this 25th day of February, 2004 /s/ John E McCormac John E McCormac, CPA State Treasurer EX-99.T3A45 43 exhibit_t3a-45.txt Exibit T3A-45 OPW ASSOCIATES, INC. CORPORATE RECORDS CONNECTICUT 1988 STATEMENT OF INCORPORATORS IN LIEU OF ORGANIZATION MEETING OF OPW ASSOCIATES, INC. * * * * * The Certificate of Incorporation of this corporation having been filed in the office of the Secretary of State, the undersigned, being all of the incorporators named in said certificate, do hereby state that the following actions were taken on this day for the purpose of organizing this corporation: 1. By-laws for the regulation of the affairs of the corporation were adopted by the undersigned incorporators and were ordered inserted in the minute book immediately following the copy of the Certificate of Incorporation and before this instrument. 2. The following persons were elected as directors to hold office until the first annual meeting of stockholders or until their respective successors are elected and qualified: RALPH E. ABLON, ROBERT M. DiGIA, SCOTT G. MACKIN, MARIA P. MONET and DAVID L. SOKOL. 3. The Board of Directors was authorized, in its discretion, to issue the shares of the capital stock of this corporation to the full amount or number of shares authorized by the Certificate of Incorporation, in such amounts and for such considerations as from time to time shall be determined by the Board of Directors and as may be permitted by law. Dated, October 11, 1988 /s/ Barbara A. Dawson Barbara A. Dawson, Incorporator /s/ Maryanne R. Behan Maryanne R. Behan, Incorporator /s/ Giovanna DeCandia Giovanna DeCandia, Incorporator SECRETARY OF THE STATE 30 TRINITY STREET P.O. BOX 150470 HARTFORD, CT 06115-0470 FEBRUARY 7, 1996 CSC NETWORKS/PRENTICE HALL 30 HIGH STREET HARTFORD, CT 06103 RE: Acceptance of Business Filing This letter is to confirm the acceptance of a filing for the following business: OPW ASSOCIATES, INC. Work Order Number: 1996018513-004 Business Filing Number: 0001587755 Type of Request: CHANGE OF AGENT FOR SERVICE OF PROCESS Date Accepted: FEB 06 1996 Time Accepted: 01:33 PM Work Order Payment Received: 400.00 Payment Received: 50.00 Business Id: 0223117 If applicable for this type of request, a summary of the business information we have on record is enclosed. If you would like copies of this filing you must complete a Request for Corporate Copies and submit it with the appropriate fee. Commercial Recording Division LISA NEMETH BUSINESS INFORMATION VERIFICATION REPORT WORK ORDER NUMBER: 1996018513-004 BUSINESS NAME SUBMITTED: OPW ASSOCIATES, INC. AGENT NAME ON RECORD: PRENTICE-HALL CORPORATION SYSTEM, INC. THE AGENT ADDRESS ON RECORD: 30 HIGH STREET HARTFORD, CT 06103 AGENT TYPE ON RECORD: BUSINESS ** END OF REPORT ** APPOINTMENT OF STATUTORY AGENT FOR SERVICE DOMESTIC CORPORATION 61-6 Rev. 6/88 Secretary of the State State of Connecticut Name of Corporation: OPW ASSOCIATES, INC. Complete All Blanks The above corporation appoints as its statutory agent for service, one of the following: Name of Natural Person Who Is Resident of Connecticut Business Address Zip Code Business Address Zip Code Name of Connecticut Corporation Address of Principal Office in Conn. (If none, enter address of appointee's statutory agent for service) Name of Corporation Address of Principal Office in Conn. (Not organized under the Laws of Conn.*) (If none, enter "Secretary of State of Conn.") The Prentice-Hall Corporation System, Inc. 30 High Street Hartford, Connecticut 06103 *Which has procured a Certificate of Authority to transact business or conduct affairs in this state. AUTHORIZATION Name of Incorporator (Print or Type) Signed (Incorporator) Date Original Appointment (Must be Signed by a majority of Incorporators) Name of Incorporator (Print or Type) Signed (Incorporator) Name of Incorporator (Print or Type) Signed (Incorporator) Subsequent Appointment Name of President, Vice President or Secretary Date /s/ Pat Collins 1/15/96 Signed (President, or Vice President or Secretary) V-P Acceptance: Name of Statutory Agent for Service (Print or Type) Signed (Statutory Agent for Service) The Prentice-Hall Corporation System, Inc. By: Vicki Schreiber Asst Vice President For Official Use Only Res; CC:: Please provide filer's name and complete address for mailing receipt
CERTIFICATE OF CHANGE OF REGISTERED OFFICE OR REGISTERED AGENT, OR BOTH (FOR USE BY DOMESTIC AND FOREIGN. PROFIT AND NON-PROFIT CORPORATIONS) CORPORATION NAME OPW ASSOCIATES, INC. STATE OF ORIGINAL INCORPORATION CONNECTICUT IMPORTANT - INCLUDE INFORMATION ON BOTH THE PRIOR AND NEW AGENT PRIOR AGENT NEW AGENT The Prentice-Hall Corporation System, NAME THE CORPORATION TRUST COMPANY NAME New Jersey, Inc. PRIOR AGENT NEW AGENT STREET ADDRESS 820 BEAR TAVERN ROAD STREET ADDRESS 830 Bear Tavern Road CITY WEST TRENTON STATE NJ ZIP 08628 CITY West Trenton STATE NJ ZIP 08628 The corporation states that the address of its new registered office and the address of its new registered agent are identical. Further, the changes designated on this form were authorized by resolution duly adopted by its board of directors or members. By /s/ Pat Title Collins V-P (Signature of Officer) (Print or Type) Date 1/15/96 NOTE - This form must be executed by the chairman of the board, or the president, or vice president of the corporation. FEES: Change of Agent Name - $10.00 Change of Agent Address - $10.00 Change of Both - $10,00 MAKE CHECKS PAYABLE TO THE SECRETARY OF STATE (NO CASH PLEASE) FOR OFFICIAL USE ONLY IMPORTANT NOTICE The failure of the corporation to notify the Secretary of State of a change in the registered agent or registered office will result in a penalty of $200.00 and the entering of a docketed judgement against the corporation in the Superior Court of New Jersey.
CONFIRMATION OF STATE OF CONNECTICUT AND RECEIPT OF FEES Office Of The Secretary Of The State 81-304 REV 8-83 30 TRINITY STREET, HARTFORD, CONNECTICUT 06106 NAME OF CORPORATION OPW ASSOCIATES, INC. DOCUMENT FILED FILING DATE TOTAL FEES PAID CERTIFICATE OF INCORPORATION 11/OCT/1988 $155.00 The information shown above pertains to documents filed in this office on account of the corporation indicated. The Filing date is the date endorsed on the document pursuant to Section 33-285 or 33-422 of the Connecticut General Statutes. Any questions regarding this filing should be addressed to: Corporations Division, Secretary Of The State's Office, 30 Trinity Street, Hartford, Connecticut 06106 CT CORPORATION SYSTEM ONE COMMERCIAL PLAZA HARTFORD CT 06103 CERTIFICATE OF INCORPORATION For office use only STOCK CORPORATION 61-5 REV. 10-69 ACCOUNT NO. INITIALS STATE OF CONNECTICUT SECRETARY OF THE STATE The undersigned incorporator(s) hereby form(s) a corporation under the Stock Corporation Act of the State of Connecticut: 1. The name of the corporation is OPW ASSOCIATES, INC. 2. The nature of the business to be transacted, or the purposes to be promoted or carried out by the corporation, are as follows: To engage in any lawful act or activity for which corporations may be formed under the Connecticut Stock Corporation Act. STATE OF CONNECTICUT ) ) SS. HARTFORD OFFICE OF THE SECRETARY OF THE STATE) I hereby certify that this is a true copy of record In this Office In Testimony whereof, I have hereunto set my hand and affixed The Seal of said State, at Hartford, this 12th day of October, A.D. 1988 SECRETARY OF THE STATE (Continued) The designation of each class of shares, the authorized number of shares of each such class, and the par value (if any) of each share thereof, are as follows: Common 100 $1.00 The terms, limitations and relative rights and preferences of each class of shares and series thereof (if any), or an express grant of authority to the board of directors pursuant to Section 33-341, 1959 Supp. Conn. G.S., are as follows: N/A The minimum amount of stated capital with which the corporation shall commence business is One thousand ($1,000.00) Dollars. (Not less than one thousand dollars) Other provisions Dated at New York, New York this 10th day of October , 1988 at of We hereby declare, under the penalties of false statement, that the statements made in the foregoing certificate are true. This certificate of incorporation must be signed by one or more incorporators. NAME OF INCORPORATOR (Print or Type) NAME OF INCORPORATOR (Print or Type) NAME OF INCORPORATOR (Print or Type) 1. /s/ Barbara A. Dawson 2. Maryanne R. Behan 3. Giovanna De Candia SIGNED (Incorporator) SIGNED (Incorporator) SIGNED (Incorporator) 1. Barbara A. Dawson 2. /s/ Maryanne R. Behan 3. /s/ Giovanna De Candia NAME OF INCORPORATOR (Print or Type) NAME OF INCORPORATOR (Print or Type) NAME OF INCORPORATOR (Print or Type) 4. 5. 6. SIGNED (Incorporator) SIGNED (Incorporator) SIGNED (Incorporator) 4. 5. 6. FRANCHISE FEE FILING FEE CERTIFICATION FEE TOTAL FEE $ 50 $ 30 $ 15 $ 155 SIGNED (For Secretary of the State) CERTIFIED COPY SENT ON (Date) INITIALS TO CARD LIST PROOF
CERTIFICATE OF AMENDMENT STOCK CORPORATION Office of the Secretary of the State 30 Trinity Street / P.O. Box 150470 / Hartford, CT 06115-0470 /Rev. 12/1999 Space For Office Use Only FILING #0002235986 PG 01 OF 02 VOL B-00401 FILED 04/03/2001 03:20 PM PAGE 02303 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE 1. NAME OF CORPORATION: OPW Associates, Inc. 2. THE CERTIFICATE OF INCORPORATION IS (check A., B. or C.): X A. AMENDED. _____ _____ B. AMENDED AND RESTATED. _____ C. RESTATED. 3. TEXT OF EACH AMENDMENT/RESTATEMENT: Article First is amended to read: "First: The name of the corporation is Covanta OPW Associates, Inc." (Please reference an 81/2x 11 attachment if additional space is needed) Space For Office Use Only FILING #0002235986 PG 02 OF 02 VOL B-00401 FILED 04/03/2001 03:20 PM PAGE 02304 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE 4. VOTE INFORMATION (check A., B. or C.): X A. The resolution was approved by shareholders as follows: _____ (set forth all voting information required by Conn. Gen. Stat. Section 33-800 as amended in the space provided below) Unanimous consent by the stockholders. _____B. The amendment was adopted by the board of directors without shareholder action. No shareholder vote was required for adoption. _____C. The amendment was adopted by the incorporators without shareholder action. No shareholder vote was required for adoption. 5. EXECUTION: Dated this 12th day of March, 2001 Patricia Collins Asst. Secretary /s/ Patricia Collins Print or type name Capacity of signatory Signature of signatory EX-99.T3A46 44 exhibit_t3a-46.txt Exhibit T3A-46. DELAWARE The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA OPWH, INC.," AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTIETH DAY OF NOVEMBER, A.D. 1990, AT 10 O'CLOCK A.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OPWH, INC." TO "COVANTA OPWH, INC.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. [Seal of the Secretary /s/ Harriet Smith Windsor Office] -------------------------------- Harriet Smith Windsor, Secretary of State 2247028-8100H AUTHENTICATION: 2951546 040135473 DATE: 02-25-04 1 Exhibit T3A-46. 2 Exhibit T3A-46. CERTIFICATE OP INCORPORATION OF OPWH, INC. 1. The name of the corporation is: OPWH, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollar (l.00) amounting in the aggregate to One Hundred Dollars ($100.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: V. A. Brookens Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 20th day of November, 1990. /s/ V.A. Brookens --------------------- V. A. Brookens 3 Exhibit T3A-46. CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OPWH, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15, 1996 /s/ Pat Collins ------------------------- Authorized Officer 4 Exhibit T3A-46. CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OPWH, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OPWH, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA OPWH, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ____, 2001. /s/ Patricia Collins --------------------------- Name: Patricia Collins Title: Ass. Secretary 5 EX-99.T3A47 45 exhibit_t3a-47.txt Exhibit T3A-47. [STATE OF FLORIDA LOGO] DEPARTMENT OF STATE I certify the attached is a true and correct copy of the Articles of incorporation, as amended to date, of COVANTA PASCO, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is M67467. Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Twenty-fifth day of February, 2004 [Great Seal of the State of Florida] Exhibit T3A-47. /s/ Glenda E. Hood ------------------------- Glenda G. Hood Secretary of State STATE OF FLORIDA ARTICLES OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF PASCO, INC. * * * * * The undersigned, acting as incorporators of a corporation under the Florida General Corporation Act, adopt the following Articles of Incorporation: FIRST: The name of the corporation is: OGDEN MARTIN SYSTEMS OF PASCO, INC. SECOND: The period of its duration is perpetual. THIRD: The purpose or purposes for which the corporation is organized are: To engaged in the transaction of any or all lawful business for which corporations may be incorporated under the provisions of the Florida General Corporation Act. FOURTH: The aggregate number of shares which the Corporation shall have authority to issue is one hundred (100) and the par value of each of such shares is One Dollar ($1.00). FIFTH: The street address of the initial registered office of the corporation is c/o C T CORPORATION SYSTEM, 8751 West Broward Blvd., City of Plantation, Florida 33324, and the name of its initial registered agent at such address is C T CORPORATION SYSTEM. SIXTH: The number of directors constituting the initial board of directors of the corporation is four (4), and the names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders or until their successors are elected and shall qualify are:
NAMES ADDRESSES ----- --------- DAVID L. SOKOL c/o Ogden Projects, Inc. 40 Lane Road Fairfield, New Jersey 07096 ALBERT O. CORNELISON, JR. c/o Ogden Corporation 2 Pennsylvania Plaza New York, New York 10121 SALVATORE S. FERRARA c/o Ogden Corporation 2 Pennsylvania Plaza New York, New York 10121 ROBERT M. DIGIA c/o Ogden Allied Services Corporation 2 Pennsylvania Plaza New York, New York 10121
SEVENTH: The name and address of each incorporator is:
NAMES ADDRESSES ----- --------- JAN MURRAY 1633 Broadway
2 New York, New York 10019 EILEEN HORAN 1633 Broadway New York, New York 10019 3 Acceptance by Registered Agent: C T Corporation system is familiar with and accepts the obligations provided for in Section 607.325. C T CORPORATION SYSTEM By: /s/ Thomas C. Totaro ---------------------- Thomas c. Totaro Assistant Secretary Dated, February 8, 1988. /s/ Jan Murray --------------------- Jan Murray /s/ Eileen Horan --------------------- Eileen Horan INCORPORATORS STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) The foregoing instrument was acknowledged before me this 8th day of February, 1988, by JAN MURRAY and EILEEN HORAN of OGDEN MARTIN SYSTEMS OF PASCO, INC. /s/ Timothy E. Carlson ------------------------- Timothy E. Carlson Notary Public My Commission Expires 4 ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF PASCO, INC. ______________________________________________________ (present name) Pursuant to the provisions of section 607.1006, Florida Statutes, this Florida profit corporation adopts the following articles of amendment to its articles of incorporation: FIRST: Amendment adopted; Article First is amended to read: First: The name of the Corporation is COVANTA PASCO, INC. SECOND: The date of the amendment's adoption is: 2/28/2001 THIRD: Adoption of Amendment: The amendment was approved by the shareholders. The number of votes cast for the amendment was sufficient for approval. Signed this 12th day of March ___, 2001. Signature /s/ Patricia Collins ----------------------------- DELAWARE The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA ENERGY RESOURCE CORP." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE ELEVENTH DAY OF JANUARY, A.D. 1983, AT 11:30 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "BLOUNT ENERGY RESOURCE CORP." TO "OGDEN ENERGY RESOURCE CORP.", FILED THE TWENTY-EIGHTH DAY OF MAY, A.D. 1991, AT 12 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN ENERGY RESOURCE CORP." TO "COVANTA ENERGY RESOURCE CORP.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. [Seal] /s/ Harriet Smith Windsor -------------------------------- Harriet Smith Windsor, Secretary of State 0952230-8100H AUTHENTICATION: 2949950 040132978 DATE: 02-24-04 CERTIFICATE OF INCORPORATION OF BLOUNT ENERGY RESOURCE CORP. 1. The name of the corporation is: BLOUNT ENERGY RESOURCE CORP. 2. The address of its registered office in the State of Delaware is 100 West Tenth Street in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of Common stock which the corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Thousand Dollars ($1,000.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by ballot. 6. The name and mailing address of the incorporator is: L. M. Custis 100 West Tenth Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 11th day of January, 1983. /s/ L. M. Custis ---------------------- L. M. Custis CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF BLOUNT ENERGY RESOURCE CORP. Blount Energy Resource Corp. (the "Corporation"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: 1. That pursuant to written consents of the Board of Directors and the sole stockholder of the Corporation, resolutions were duly adopted amending the Certificate of Incorporation of the Corporation as follows: RESOLVED, that Article 1 of the Certificate of Incorporation is amended to read as follows: "1. The name of the corporation is: Ogden Energy Resource Corp." 2. That the foregoing amendment to the Certificate of Incorporation was duly adopted in accordance with Section 242 of the Delaware General Corporation Law. 3. That the capital of the Corporation shall not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Blount Energy Resource Corp. has caused this Certificate to be signed by its Executive Vice President and Secretary this 24th day of May 1991. /s/ William C. Mack -------------------------------- William C. Mack Executive Vice President and Secretary Attest: /s/ Patricia Collins - ----------------------- Patricia M. Collins Assistant Secretary CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN ENERGY RESOURCE CORP. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hill Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on ____, 19__ /s/ Jeff Horowitz ------------------------------ Authorized Officer CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN ENERGY RESOURCE CORP. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN ENERGY RESOURCE CORP. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ENERGY RESOURCE CORP. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins -------------------------------- Name: Patricia Collins Title: Asst. Secretary EX-99.T3A48 46 exhibit_t3a-48.txt Exhibit T3A-48. CERTIFICATION OF INCORPORATION OF OGDEN PLANT SERVICES OF NEW JERSEY, INC. ---------- To: The Secretary of State State of New Jersey Pursuant to the provisions of the New Jersey Business Corporation Act, the undersigned, being a natural person of at least 18 years of age and acting as the incorporator of the corporation hereby being organized thereunder, certifies that: FIRST: The name of the corporation (hereinafter called the "corporation") is OGDEN PLANT SERVICES OF NEW JERSEY, INC. SECOND: The corporation may engage in any activity within the purposes for which corporations may be organized under the New Jersey Business Corporation Act. THIRD: The aggregate number of shares which the corporation shall have authority to issue is one hundred, all of which are of a par value of one dollar each, and all of which are of the same class. FOURTH: The address of the initial registered office of the corporation within the State of New Jersey is c/o The Prentice-Hall Corporation System, New Jersey, Inc., 150 West State Street, Trenton, New Jersey 08608; and the name of the initial registered agent at such address is The Prentice-Hall Corporation System, New Jersey, Inc. FIFTH: The number of directors constituting the first Board of Directors of the corporation is two; and the name and the address of the persons who are to serve as the first directors of the corporation are as follows:
NAME ADDRESS ---- ------- Peter Allen 2 Pennsylvania Plaza New York, New York 10121 J. L. Effinger 2 Pennsylvania Plaza New York, New York 10121
1 Exhibit T3A-48. SIXTH: The name and the address of the incorporator are as follows:
NAME ADDRESS ---- ------- Frances A. Wrigley 15 Columbus Circle New York, New York 10023-7773
SEVENTH: For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation, and regulation of the powers of the corporation and of its directors and of its shareholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the corporation, including the election of the Chairman of the Board of Directors, if any, the President, the Treasurer, the Secretary, and other principal officers of the corporation, shall be vested in its Board of Directors. 2. The Board of Directors shall have the power to remove directors for cause and to suspend directors pending a final determination that cause exists for removal. 3. The corporation shall, to the fullest extent permitted by Section 14A:3-5 of the New Jersey Business Corporation Act, as the same may be amended and supplemented, indemnify any and all corporate agents whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said Section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any By-Law, agreement, vote of shareholders, or otherwise, and shall continue as to a person who has ceased to be a corporate agent and shall inure to the benefit of the heirs, executors, administrators, and personal representatives of such a corporate agent. The term "corporate agent" as used herein shall have the meaning attributed to it by Sections 14A:3-5 and 14A:5-21 of the New Jersey Business corporation Act and by any other applicable provision of law. 2 Exhibit T3A-48. 4. The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by subsection 14A:2-7 of the New Jersey Business Corporation Act, as the same may be amended and supplemented. EIGHTH: The shareholders shall not have preemptive rights. NINTH: The duration of the corporation is to be perpetual. Signed on November 22, 1990. /s/ Frances A. Wrigley -------------------------------- Frances A. Wrigley, Incorporator 3 Exhibit T3A-48. C-102A Rev 12/93 New Jersey Department of the Treasury Division of Revenue Certificate of Amendment to Certificate of Incorporation (For Use by Domestic Profit Corporations) Pursuant to the provisions of Section 14A:9-2 (4) and Section 14A:9-4 (3), Corporations, General, of the New Jersey Statutes, the undersigned corporation executes the following Certificate of Amendment to its Certificate of Incorporation: 1. The name of the corporation Is: OGDEN PLANT SERVICES OF NEW JERSEY, INC. 2. The following amendment to the Certificate of Incorporation was approved by the directors and thereafter duly adopted by the shareholders of the corporation on the 28th day of February, 2001. Resolved, that Article First of the Certificate of Incorporation be amended to read as follows: First: the name of the corporation is COVANTA PLANT SERVICES OF NEW JERSEY, INC. 3. The number of shares outstanding at the time of the adoption of the amendment was: 100 The total number of shares entitled to vote thereon was: 100 If the shares of any class or series of shares are entitled to vote thereon as a class. set forth below the designation and number of outstanding shares entitled to vote thereon of each such class or series. (Omit if not applicable). N/A 4 Exhibit T3A-48. 4. The number of shares voting for and against such amendment is as follows: (If the shares of any class or series are entitled to vote as a class, set forth the number of shares of each such class and series voting for and against the amendment, respectively).
Number of Shares Voting for Amendment Number of Shares Voting Against Amendment - ------------------------------------- ----------------------------------------- 100 0
5. It the amendment provides for an exchange, reclassification or cancellation of Issued shares, set forth a statement of the manner in which the same shall be effected. (Omit if not applicable). 6. Other provisions: (Omit If not applicable). S 920598 1759448 1759450 BY: (Signature) Dated this 1st day of March 2004 Executive Vice-President May be executed by the Chairman of the Board, or the President, or a Vice President of the Corporation. 5 Exhibit T3A-48. STATE OF NEW JERSEY DEPARTMENT OF TREASURY FILING CERTIFICATION (CERTIFIED COPY) COVANTA PLANT SERVICES OF NEW JERSEY, INC. I, the Treasurer of the State of New Jersey, do hereby certify, that the above named business did file and record in this department the below listed document(s) and that the foregoing is a true copy of the Certification Of Incorporation And Name Change as the same is taken from and compared with the original(s) filed in this office on the date set forth on each instrument and now remaining on file and of record in my office. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal at Trenton, this 25th day of February, 2004 /s/ John E. McCormac -------------------------------- John E. McCormac, CPA State Treasurer 6 EX-99.T3A50 47 exhibit_t3a-50.txt EXHIBIT T3A-50 STATE OF CALIFORNIA SECRETARY OF STATE I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 7 page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California on this day of Feb 26 2004 /s/ Kevin Shelley ------------------------------------ Secretary of State 1174445 FILED In the office of the Secretary of State of the State of California APR 27 1983 ARTICLES OF INCORPORATION OF PACIFIC LIGHTING ENERGY SYSTEMS I The name of this Corporation is Pacific Lighting Energy Systems II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the State of California of this corporation's initial agent for service of process is: William A. Dorland, 810 South Flower Street, Los Angeles, California 90017. IV This corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is 10,000. DATED: April 27, 1983 /s/ David M. Turner -------------------------------------- David M. Turner I hereby declare that I am the person whom executed the foregoing Articles of Incorporation, which execution is my act and deed. /s/ David M. Turner --------------------------------------- David M. Turner - 2 - PACIFIC LIGHTING CORPORATION Mailing Address K. Richard Edsall 810 South Flower Street P.O. Box 60043 Vice President, Secretary Los Angeles, California 90017 Terminal Annex and General Counsel Telephone (213) 689-3581 Los Angeles, California 90060
April 27, 1983 Secretary of State State of California 1230 J Street Sacramento, CA 95814 Re: Pacific Lighting Energy Systems Dear Sir: Pacific Lighting Corporation, a California corporation, with its principal place of business in Los Angeles, California, hereby consents to the formation by David M. Turner of a corporation by the name of "Pacific Lighting Energy Systems" in California, said corporation to be a subsidiary of Pacific Lighting Corporation. Very truly yours, K. Richard Edsall KRE/gr 1174445 FILED In the office of the Secretary of State of the State of California FEB 25 1988 CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION DANIEL A. SEIGEL and WILLIAM A. DORLAND certify that: 1. They are the president and secretary, respectively, of PACIFIC LIGHTING ENERGY SYSTEMS, a California corporation. 2. Article I of the Articles of Incorporation of this corporation is amended to read as follows: "The name of this corporation is PACIFIC ENERGY." 3. The foregoing amendment of Articles of Incorporation has been duly approved by the board of directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902 of the Corporations Code. The total number of outstanding shares of the corporation is ten. The number of shares voting in favor of the amendment equalled or exceeded the vote required. The percentage vote required was more than 50%. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. Dated: February 10, 1988 /s/ Daniel A. Seigel ------------------------------------------ Daniel A. Seigel, President /s/ William A. Dorland ------------------------------------------ William A. Dorland, Secretary 1174445 FILED In the office of the Secretary of State of the State of California OCT 31 1997 CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF PACIFIC ENERGY -------------------------- (A CALIFORNIA CORPORATION) To The Secretary of State State of California Pursuant to the provisions of the General Corporation Law of the State of California, the undersigned officers of the corporation hereinafter named do hereby certify us follows: 1. The name of the corporation is Pacific Energy 2. Article I of the Articles of Incorporation of this corporation is amended to read as follows: "The name of this corporation is Ogden Power Pacific, Inc." 3. The amendments herein provided for have been approved by the corporation's Board of Directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902 of the Corporations Code. The total number of outstanding shares of the corporation is ten. The number of shares of voting in flavor of the amendment equalled or exceeded the vote required. The percentage vote required was more than 50%. Signed on Oct. 29, 1997 /s/ Scott G. Mackin ------------------------------------------ Scott G. Mackin, Chief Operating Officer /s/ Jeffrey R. Horowitz ------------------------------------------ Jeffrey R. Horowitz, Secretary On this 29th day of October, 1997, in the Town of Fairfield in the State of New Jersey. each of the undersigned does hereby declare under the penalty of perjury that he signed the foregoing Certificate of Amendment of Articles of Incorporation in the official capacity set forth beneath his signature, and that the statements set forth in said certificate arc true of his own knowledge. /s/ Scott G. Macklin ---------------------------------------- Scott G. Mackin, Chief Operating Officer /s/ Jeffrey R.Horowitz ---------------------------------------- Jeffrey R. Horowitz, Secretary 1174445 FILED In the office of the Secretary of State of the State of California MAR 14 2001 CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION The undersigned certify that: 1. They are the president and assistant secretary and respectively, of OGDEN POWER PACIFIC, INC., a California corporation. 2. Article one of the Articles of Incorporation of this corporation is amended to read as follows: First: The name of the Corporation is COVANTA POWER PACIFIC, INC. 3. The foregoing amendment of Articles of Incorporation has been duly approved by the board of directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902, California Corporations Code. The total number of outstanding shares of the corporation is 10. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. Date: ________________ /s/ Paul Clements --------------------------------------- Paul Clements, President /s/ Patricia Collins --------------------------------------- Patricia Collins, Assistant Secretary EX-99.T3A51 48 exhibit_t3a-51.txt Exhibit T3A-51. ARTICLES OF INCORPORATION OF PACIFIC POWER PLANT OPERATIONS One: The name of this corporation is: PACIFIC POWER PLANT OPERATIONS Two: The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. Three: The name and address in the State of California of this corporation's initial agent for service of process in accordance with subdivision (b) of Section 1502 of the General Corporation Law is: Stephen J. Skuris 633 West Fifth Street Suite 5200 Los Angeles, CA 90071-2006 Four: The corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is One Thousand (1,000). Five: The liability of the directors of this corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. Six: The corporation is authorized to provide indemnification of its agents (as such term is defined in Section 317 of the General Corporation Law of California) to the fullest extent permissible under California law. Dated: September 16, 1994 /s/ Stephen J. Skuris ------------------------------- Stephen J. Skuris, Incorporator Exhibit T3A-51. CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF PACIFIC POWER PLANT OPERATIONS (a California corporation) To The Secretary of State State of California Pursuant to the provisions of the General Corporation Law of the State of California, the undersigned officers of the corporation hereinafter named do hereby certify as follows: 1. The name of the corporation is Pacific Power Plant Operations. 2. Article 1 of the Articles of Incorporation of this corporation is amended to read as follows: "The name of this corporation is Ogden Power Plant Operations" 3. The amendments herein provided for have been approved by the corporation's Board of Directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902 of the Corporations Code. The total number of outstanding shares of the corporation is ten. The number of shares of voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. Signed on December 11, 1997. /s/ Scott G. Mackin --------------------------- Scott G. Mackin, Chief Operating Officer /s/ Jeffrey R. Horowitz --------------------------- Jeffrey R. Horowitz, Secretary Exhibit T3A-51. On this 11th day of December, 1997, in the Town of Fairfield in the State of New Jersey, each of the undersigned does hereby declare under the penalty of perjury that he signed the foregoing Certificate of Amendment of Articles of Incorporation in the official capacity set forth beneath his signature, and that the statements set forth in said certificate are true of his own knowledge. /s/ Scott G. Mackin ---------------------------- Scott G. Mackin, Chief Operating Officer /s/ Jeffrey R. Horowitz --------------------------- Jeffrey R. Horowitz, Secretary Exhibit T3A-51. CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION The undersigned certify that: 1. They are the president and assistant secretary, respectively, of OGDEN POWER PLANT OPERATIONS, a California corporation. 2. Article one of the Articles of Incorporation of this corporation is amended to read as follows: First: The name of the Corporation is COVANTA POWER PLANT OPERATIONS. 3. The foregoing amendment of Articles of Incorporation has been duly approved by the board of directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902, California Corporations Code. The total number of outstanding shares of the corporation is 10. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. DATE: March 12, 2001 /s/ Paul Clements ------------------------------ Paul Clements, President /s/ Patricia Collins ------------------------------ Patricia Collins, Assistant Secretary EX-99.T3A52 49 exhibit_t3a-52.txt Exhibit T3A-52 DEPARTMENT OF REGULATORY AGENCIES STATE OF HAWAII In the Matter of the Incorporation ) ) of ) ) AMFAC/C-E HAWAII, INC. ) ) - ----------------------------------------------------- ARTICLES OF INCORPORATION AND AFFIDAVIT OF OFFICERS Kenneth A. Odell - No. 2295 700 Bishop Street Honolulu, Hawaii 96813 Telephone: 945-8216 Attorney for Incorporator STATE OF HAWAII DEPARTMENT OF REGULATORY AGENCIES Business Registration Division 1010 Richards Street Mailing Address: P. O. Box 40, Honolulu, Hawaii 96810 In the Matter of the Amendment of ) the Articles of Incorporation of ) ) ) Amfac/C-E Hawaii, Inc. ) ) - ----------------------------------------------------- CERTIFICATE OF AMENDMENT The undersigned duly authorized officers of Amfac/C-E Hawaii. Inc., a Hawaii corporation, do hereby certify as follows: (line out inapplicable statement) A. That at a special meeting of the stockholders of said corporation duly called for the purpose of changing the name of the corporation and held at on the day of 19 it ----- ------------ --------------------------- ------- was voted by the holders of shares outof shares ------------- ------------ of stock issued, outstanding, and having voting power, to amend the Articles of Incorporation by deleting the name " ----------------------- ----------------------------------------------------------------------" wherever it appears in the Articles of Incorporation, and inserting in lieu thereof the name "------------------- --------------------------". B. That all of the stockholders of the corporation entitled to vote have consented in writing, in lieu of a meeting, to amend the Articles of Incorporation by deleting the name "Amfac/C-E Hawaii, Inc." wherever it appears in the Articles of Incorporation, and inserting in lieu thereof the name "Combustion Engineering Hawaii, Inc.". IN WITNESS WHEREOF, the undersigned have hereunto set their hands this 26th day of November 1980. /s/ George St. John -------------------------------- Office Held: Vice President /s/ Kenneth A. Odell -------------------------------- Office Held: Assistant Secretary STATE OF HAWAII ) ) ss. City & County of Honolulu ) - ------------------------------------ George St. John and Kenneth A. Odell being first duly sworn on oath depose and say that they are the Vice President and Assistant Secretary respectively, of Amfac/C-E Hawaii, Inc.; (state present name and not proposed name) that as such officers they are duly authorized to sign the foregoing Certificate of Amendment; and that they have read the said Certificate, know the contents thereof, and that the same are true. /s/ George St. John --------------------------- Office Held: Vice President /s/ Kenneth A. Odell --------------------------- Office Held: Assistant Secretary Subscribed and sworn to before me this 26th day of November, 1980. /s/ Susan S. Shiroma Notary Public, ____________Judicial Circuit State of Hawaii My commission expires: 3/26/83 Exhibit T3A-52 DEPARTMENT OF REGULATORY AGENCIES STATE OF HAWAII In the Matter of the Incorporation ) ) of ) AMFAC/C-E HAWAII, INC. ) ) - ----------------------------------------------------- ARTICLES OF INCORPORATION The undersigned, desiring to form a corporation under the laws of the State of Hawaii, does hereby execute the following Articles of Incorporation: First: The name of the corporation shall be Amfac/C-E Hawaii, Inc. Second: The location of the principal office of the corporation shall be in Waipahu, Hawaii or at such other location in the State of Hawaii as the Board of Directors shall designate. The street address of the initial office of the corporation will be 94-833 Makaaloha Street, Waipahu, Hawaii 96797. The mailing address of the initial office will be P. O. Box O, Waipahu, Hawaii 96797. Third: The purposes for which the corporation is organized are the following: (a) To engage in the business of a general contractor in the State of Hawaii; to construct, finance and operate construction projects and to buy, own, sell, lease or rent property, real, personal or mixed, if any be necessary in the conduct of its business aforesaid and not contrary to law. (b) To undertake and carry on any business, investment, transaction, venture or enterprise which may be lawfully undertaken or carried on by a corporation and any business whatsoever which may seem to the corporation convenient or suitable to be undertaken. The corporation shall have the following powers: 1. To have succession by its corporate name perpetually; 2. To sue and be sued in any court; 3. To make and use a common seal, and to alter the same at its pleasure; 4. To hold, purchase and convey such property as the purposes of the corporation shall require without limit as to amount; 5. To appoint such subordinate officers and agents as the business of the corporation requires; 6. To make and adopt, and from time to time amend or repeal, Bylaws not inconsistent with any of the Articles of Incorporation or with the laws of the State of Hawaii; 7. To borrow money or otherwise incur indebtedness without limit as to amount and with or without security and to secure any indebtedness by deed of trust, mortgage, pledge, hypothecation or lien upon all or any part of the real, personal or mixed property of the corporation, and to execute bonds, promissory notes, bills of exchange, debentures or other obligations or evidences of indebtedness of all kinds; 8. To purchase, take, receive, subscribe for, or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge or otherwise dispose of and generally to use and deal in and with stocks, scrip, bonds, notes, debentures, commercial paper, obligations and securities including, so far as permitted by law, its own issued shares of capital stock or other securities, and also any other securities or evidences of indebtedness whatsoever or any interest therein and while the owner of the same to exercise all the rights, powers and privileges of ownership; 2 9. To draw, make, accept, endorse, assign, discount, guarantee, execute and issue all such bills of exchange, bills of lading, promissory notes, stock and other warrants and other instruments to be assignable, negotiable or transferable by delivery or to order or otherwise; 10. To lend and advance money or to give credit, with or without security, to such persons, firms or corporations and on such terms as the Board of Directors shall determine; and if with security, then upon mortgages, deeds of trust, pledges or other hypothecations or liens upon real, personal or mixed property or any right or interest therein or thereto; 11. To aid any person or entity of which any of the bonds or other securities or evidences of indebtedness or stock are held by this corporation, and to do any acts or things to preserve, protect, improve or enhance the value of any such bonds or other securities or evidences of indebtedness or stock, including specifically the right and power to enter into and take the management of any such enterprise of any kind or nature and, while so managing any such enterprise, to do the acts and things incidental or necessary thereto; 12. To become a party to and effect a merger or consolidation with another corporation or other corporations, and to enter into agreements and relationships with any persons or entity; 13. To become surety for or guarantee any dividends, bonds, stocks, contracts, debts or other obligations or undertakings, with or without security, of any other person or entity; 14. To become a general or limited partner in any partnership or to become a venturer in any joint venture, and to enter into and perform any contracts, undertakings and obligations to the same extent as if the corporation were a natural person; 15. To sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise 3 dispose of all or any part of its property and assets; 16. To lend money to its employees, officers and directors and otherwise assist its employees, officers and directors; 17. To conduct its business, carry on its operations, have offices and exercise the powers granted to it in any part of the world, directly or indirectly, and as principal, agent, factor, contractor or otherwise, and by or through trustees, agents or otherwise, and either alone or in conjunction with others; 18. To elect or appoint officers and agents of the corporation, define their duties and fix their compensation; 19. To make donations for the public welfare or for charitable, scientific or educational purposes and, in time of war, to make donations in aid of war activities; 20. In time of war, to transact any lawful business in aid of the United States in the prosecution of the war; 21. To indemnify any director or officer or former director or officer of the corporation or any person who may have served at its request as a director or officer of another corporation, whether or not such person is also an officer or director of the corporation, and the heirs, executors, administrators and assigns of any person heretofore named, against all costs, expenses and liabilities including the amounts of judgments, amounts paid in compromise settlements and paid for services of counsel and other related expenses which may be incurred by or imposed on him in connection with any claim, investigation, inquiry, action, suit or proceeding, civil or criminal, instituted or threatened in which he may be involved as a party or otherwise by reason of being or having been such director or officer, whether or not he continues to be such officer or director at the time of the incurring or imposition of such costs, expenses or 4 liabilities, except in relation to matters as to which he is finally adjudged in the action, suit or proceeding to be liable for negligence or willful misconduct in the performance of his duty to the corporation; to make any other indemnification that is authorized by the Articles of Incorporation, the Bylaws or any resolution adopted by the stockholders after notice; and to purchase and maintain insurance on behalf of any person who may be indemnified under these Articles of Incorporation or the Bylaws of the corporation; 22. To pay pensions and establish pension plans, pension trusts, profit-sharing plans, stock bonus plans, stock option plans and other incentive or benefit plans for any of its directors, officers and employees; and, to the extent permitted by applicable federal law, to indemnify and purchase and maintain insurance on behalf of any fiduciary of any employee benefit plan or trust maintained for the benefit of employees of the corporation or another corporation in which it owns shares; 23. To enter into any arrangement with any person or entity to carry on any business for which this corporation is authorized or any business or transaction deemed necessary, convenient or incidental to carrying out any of the purposes of the corporation; 24. To cease its corporate activities and surrender its corporate franchise; 25. To have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is organized or which may hereafter be provided by law and which may be implied therefrom. The foregoing purposes and powers shall be liberally construed and shall not be deemed to exclude by inference any purposes or powers which the corporation is empowered to exercise, whether expressly by any applicable laws now or hereafter in effect or impliedly by the reasonable construction of any such laws. 5 Fourth: The number of shares of common stock that the corporation is authorized to issue is One Thousand (1,000). The aggregate par value of the common stock is One Thousand Dollars ($1,000). The par value of each share is One Dollar ($1.00). The corporation shall have the privilege of subsequent extension of its capital stock from time to time in the manner provided by law up to a limit of Ten Million Dollars ($10,000,000) in the aggregate. The corporation shall have power from time to time to create an additional class or additional classes of stock with such preferences, voting powers, restrictions and qualifications thereof as shall be fixed in the resolution authorizing the issue thereof in accordance with law. Fifth: (a) The Board of Directors of the corporation shall consist of two or more persons as shall be determined in accordance with the Bylaws. The officers and directors of the corporation need not be stockholders of the corporation. The directors (and alternate directors and/or substitute directors, if any) shall be elected or appointed, may be removed from office and all vacancies in the office of the director or of any officer shall be filled all in the manner provided for in the Bylaws. (b) The names and residence addresses of the directors who are to serve until their successors are elected, as provided by the Bylaws, are as follows: NAME RESIDENCE ADDRESS David W. Ballie, Jr. 250 Kawaihae Street Honolulu, Hawaii 96825 Leo E. Buckley 6 Merrywood Drive Simsbury, Connecticut 06070 John A. Cunningham 90 Juniper Drive Avon, Connecticut 06095 J. T. Fellows 246 Aikahi Loop Kailua, Hawaii 96734 6 John W. Siemer 4340 Pahoa Avenue Honolulu, Hawaii 96816 John H. Slack 10 Highwood Drive Simsbury, Connecticut 06070 (c) All the powers and authority of the corporation shall be vested in and may be exercised by the Board of Directors, except as otherwise provided by law, these Articles of Incorporation or the Bylaws; and in furtherance and not in limitation of the general powers, the Board of Directors shall have the power to hold meetings; to issue from time to time any or all shares of the corporation to any party or parties for such consideration or considerations upon and subject to such terms and conditions and for such corporate purposes as the Board may from time to time determine; to determine what portion, if any, of the consideration received for any authorized stock without par value shall be allocated to the paid-in surplus of the corporation; to determine at what times and places and under what conditions the books of the corporation shall be open to inspection by the stockholders; to fix and determine from time to time an amount or amounts as a reserve or reserves for any purpose or to abolish any such reserve or reserves; to make any lawful disposition of any paid-in or capital surplus or charge to the same organization expenses or other similar expenses properly chargeable to the capital account; to use or apply any funds of the corporation lawfully available therefore for the purchase or acquisition of shares of the capital stock or bonds or other securities of this corporation, in the market or otherwise, at such price as may be fixed by the Board and to such extent and in such manner and for such purposes and upon such terms as the Board may deem expedient and as may be permitted by law; from time to time in such manner and upon such terms and conditions as may be determined by the Board, to provide and carry out and recall, abolish, revise, alter or change, one or more plan or plans for: (i) the issue or the purchase and sale of its capital stock or granting of options 7 or warrants therefor to any or all of the employees, officers or directors of the corporation or of any subsidiaries, and the payment of such stock in installments or at one time, with or without the right to vote thereon pending payment in full, and for aiding any such persons in paying for such stock by contributions, compensation for services or otherwise; (ii) the participation by any or all of the employees, officers or directors of the corporation or of any subsidiaries in the profits of the corporation or of any branch, division or subsidiary thereof as part of the corporation's legitimate expenses; and (iii) the furnishing to any or all of the employees, officers or directors of the corporation or of any subsidiaries at the expense, wholly or in part, of the corporation, of insurance against accident, sickness or death, pensions during old age, disability or unemployment or retirement benefits; from time to time to authorize and issue obligations of the corporation, secured or unsecured, to include therein such covenants and restrictions and such provisions as to redeemability, subordination, convertibility, or otherwise, and with such maturities as the Board in its sole discretion may determine, and to authorize the mortgaging of, granting a security interest in or pledging of, as security therefor, any part or all of the property of the corporation, real or personal, including after-acquired property; to acquire and dispose of property; to appoint a general manager, branch managers and such other managers or agents of the corporation as in its judgment this business may require and to confer upon and delegate to them by power of attorney or otherwise such power and authority as it shall determine; to fix the salaries or compensation of any or all of its officers, agents and employees, and in its discretion to require security of any of them for the faithful performance of any of their duties; to declare dividends when deemed advisable; to make rules and regulations consistent with these Articles of Incorporation or the Bylaws for the transaction of business; to instruct the officers or agents of the corporation with respect to, and to authorize the voting of, stock of other corporations owned 8 or held by this corporation; to incur such indebtedness as may be deemed desirable; to create such committees (including an executive committee or committees) and to designate as members of such committees such persons as it shall determine and to confer upon such committees such powers and authorities as may by resolution be set forth for the purpose of carrying on or exercising any of the powers of the corporation; to remove or suspend any officer and generally to do any and every lawful act necessary or desirable to carry into effect the powers and purposes of the corporation. (d) The officers of the corporation shall be a Chairman of the Board, President, one or more Vice Presidents as shall be determined by the Bylaws, a Secretary and a Treasurer. The corporation may have such additional officers as shall be determined in accordance with the Bylaws. The officers shall have the powers, perform the duties and be appointed as shall be determined in accordance with the Bylaws. Any person may hold two offices of the corporation if so provided by the Bylaws. The names and residence addresses of the initial officers are: NAME RESIDENCE ADDRESS John H. Slack 10 Highwood Drive Chairman of the Board Simsbury, Connecticut 06070 John W. Siemer 4340 Pahoa Avenue President Honolulu, Hawaii 96816 William D. Balfour, Jr. 94-925 Manager's Drive Vice President Waipahu, Hawaii 96797 David W. Ballie, Jr. 250 Kawaihae Street Vice President and Secretary Honolulu, Hawaii 96825 John A. Cunningham 90 Juniper Drive Vice President Avon, Connecticut 06095 George St. John 94-544 Alapoai Street Vice President and Treasurer Mililani, Hawaii 96789 9 Hans von Steiger 39 Linbrook Vice President West Hartford, Connecticut 06107 Anthony Corjulo 172 Stoner Drive Assistant Secretary West Hartford, Connecticut 06107 Herbert C. Jahnke 15 Evans Drive Assistant Secretary Simsbury, Connecticut 06070 Kenneth A. Odell 427 Paumakua Place Assistant Secretary Kailua, Hawaii 96734 Leo E. Buckley 6 Merrywood Drive Assistant Treasurer Simsbury, Connecticut 06070 J. T. Fellows 245 Aikahi Loop Assistant Treasurer Kailua, Hawaii 96734 Haney S. Miura 3718-D Kilauea Avenue Assistant Treasurer Honolulu, Hawaii 96816 Sixth: No contract or other transaction between the corporation and any other person, firm, corporation, association or other organization and no act of the corporation shall in any way be affected or invalidated by the fact that any of the directors or officers of the corporation are parties to such contract, transaction or act or are pecuniarily or otherwise interested in the same or are directors or officers or members of any such other firm, corporation, association or other organization, provided that the interest of such director shall be disclosed or shall have been known to the Board of Directors authorizing or approving the same or to a majority thereof. Any director of the corporation who is a party to such transaction, contract or act or who is pecuniarily or otherwise interested in the same or is a director or officer or member of such other firm, corporation, association or other organization may be counted in determining a quorum of any meeting of the Board of Directors which shall authorize or approve any such contract, transaction or act and may vote thereon with like force and effect as if he were in no way interested therein. Neither any director nor any officer of the corporation, being so 10 interested in any such contract, transaction or act of the corporation which shall be approved by the Board of Directors of the corporation, nor any such other person, firm, corporation, association or other organization in which such director may be a director, officer or member shall be liable or accountable to the corporation or to any stockholder thereof, solely by reason of being an interested person, for any loss incurred by the corporation pursuant to or by reason of such contract, transaction or act or for any gain received by any such other party pursuant thereto or by reason thereof. Seventh: The corporation shall indemnify each present, former and future officer and director of the corporation and each person who serves at the request of the corporation as an officer or director of any other corporation, whether or not such person is also an officer or director of the corporation, against all costs, expenses and liabilities including the amounts of judgments, amounts paid in compromise settlements and paid for services of legal counsel and other related expenses which may be incurred by or imposed on him in connection with any claim, demand, action, suit, proceeding, investigation or inquiry, civil or criminal, hereafter made, instituted or threatened in which he may be involved as a party or otherwise by reason of his being or having been such officer or director, whether or not he continues to be such officer or director at the time of the incurring or imposition of such costs, expenses or liabilities, except in relation to matters as to which he shall in such action, suit or proceeding be finally adjudged to be, or shall be, liable by reason of his negligence or willful misconduct toward the corporation in the performance of his duties as such officer or director. As to whether or not a director or officer was liable by reason of negligence or willful misconduct toward the corporation in the performance of his duties as such officer or director, in the absence of such final adjudication of the existence of such liability, the Board of Directors and each officer and director may 11 conclusively rely upon an opinion of legal counsel selected by or in the manner designated by the Board of Directors. The foregoing right of indemnification shall not be exclusive of other rights to which any such officer or director may be entitled as a matter of law or otherwise and shall inure to the benefits of the heirs, executors, administrators and assigns of each such officer or director. Eighth: No stockholder shall be liable for the debts of the corporation beyond the amount which may be due or unpaid upon any share or shares of stock of the corporation owned by him. IN WITNESS WHEREOF, the Incorporator has hereunto subscribed her name on this 24th day of June, 1980. /s/ Barbara Wilson ------------------ Barbara Wilson 12 STATE OF HAWAII ) ) SS: CITY & COUNTY OF HONOLULU ) On this 24 day of June, 1980, before me personally appeared Barbara Wilson, to me known to be the person described in and who executed the foregoing instrument, and acknowledged to me that she executed the same as her free act and deed. /s/ Susan S. Shiroma Notary Public, First Judicial Circuit, State of Hawaii My commission expires: 3/26/83 13 Exhibit T3A-52 DEPARTMENT OF REGULATORY AGENCIES STATE OF HAWAII In the Matter of the Incorporation ) ) of ) ) AMFAC/C-E HAWAII, INC. ) ) - ----------------------------------------------------- AFFIDAVIT OF OFFICERS STATE OF HAWAII ) ) SS: CITY & COUNTY OF HONOLULU ) John W. Siemer, George St. John and David W. Ballie, Jr., being first duly sworn, each for himself, deposes and says that: 1. John W. Siemer, George St. John and David W. Ballie, Jr. are named in the Articles of Incorporation filed herewith as President, Vice President and Treasurer and Vice President and Secretary, respectively, of Amfac/C-E Hawaii, Inc. 2. The total number of authorized shares of the proposed corporation is One Thousand (1,000) shares of common stock with the par value of One Dollar ($1) each, having a total capitalization of One Thousand Dollars ($1,000), with the privilege of extending the capital stock of the corporation up to Ten Million Dollars ($10,000,000). 3. The name of the subscribers for said shares, the number of shares subscribed for, the subscription price of the shares subscribed and the amount of capital paid in cash by each subscriber are as follows: 1
Number of Shares Subscription Price Cash Subscriber Subscribed For Shares Paid In - ---------------------------- ---------------- ------------------ ------- Combustion Engineering, Inc. 500 $500 $500 Oahu Sugar Company, Limited 500 $500 $500
4. One hundred percent (100%) of the aggregate authorized capital stock of the proposed corporation has been subscribed and paid in cash. And further affiants sayeth not. /s/ John W. Siemer ------------------ John W. Siemer /s/ George St. John ------------------- George St. John /s/ David W. Ballie, Jr. ------------------------ David W. Ballie, Jr. Subscribed and sworn to before me, this 24th day of June, 1980. - ---------------------------------- Notary Public, First Judicial Circuit, State of Hawaii My commission expires: 3/26/83 2 Exhibit T3A-52 State of California OFFICE OF THE SECRETARY OF STATE I, MARCH FONG EU, Secretary of State of the State of California, hereby certify: That the annexed transcript has been compared with the record on file in this office, of which it purports to be a copy, and that same is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this December 15, 1983 /s/ MARCH FONG EU ------------------ Secretary of State Exhibit T3A-52 CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION CLYDE E. SUMIDA and BARBARA WILSON certify that: 1. They are the Vice President and the Secretary, respectively, of AMFAC COMMERCIAL CREDIT, a California corporation. 2. Article One of the Articles of Incorporation of this corporation is amended to read as follows: "The name of this corporation is OAHU WASTE ENERGY RECOVERY, INC." 3. Article Two of the Articles of Incorporation of this corporation is amended to read as follows: "The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code." 4. Article Three of the Articles of Incorporation of this corporation is amended to read as follows: "The county in the State of California where the principal office for the transaction of the business of this corporation is to be located is San Francisco County." 5. Article Sixth of the Articles of Incorporation of this corporation is added to read as follows: "This corporation elects to be governed by all of the provisions of the General Corporation Law effective January 1, 1977 nor otherwise applicable to it under Chapter 23 thereof." 6. The foregoing amendments of Articles of Incorporation have been duly approved by the Board of Directors. 7. The foregoing amendments of Articles of Incorporation have been duly approved by the sole stockholder in accordance with Section 902 of the Corporations Code. The total number of outstanding shares of the corporation is 1,000. The number of shares voting in favor of the amendments equaled or exceeded the vote required. The percentage vote required was more than 50%. The undersigned declare under penalty of perjury that the matters set forth in the certificate are true and correct of their own knowledge. Executed at Honolulu, Hawaii on December 12, 1983. /s/ Clyde E. Sumida ------------------- CLYDE E. SUMIDA, Vice President /s/ Barbara Wilson ------------------ BARBARA WILSON, Secretary STATE OF HAWAII DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS Business Registration Division 1010 Richards Street Mailing Address: P.O. Box 40, Honolulu, Hawaii 96810 ARTICLES OF AMENDMENT TO CHANGE CORPORATE NAME (Section 415-61, Hawaii Revised Statutes) 1. The undersigned, duly authorized officers of the corporation submitting these Articles of Amendment certify as follows: 2. The present name of the corporation is: Combustion Engineering Hawaii, Inc. 3. The name of the corporation is changed to: Ogden Projects of Hawaii, Inc. 4. Total number of shares outstanding is: 1,000 common shares, $1.00 par value per share 5. If adoption of the amendment to change the corporate name was at a meeting, complete the following: The meeting of the shareholders was held on.________________________________ (Month Day Year) Number Voting Number Voting Class/Series For Amendment Against Amendment 6. If adoption of the amendment to change the corporate name was by unanimous written consent of the shareholders, complete the following: December 29, 1992, By written consent dated ------------------------------------------- (Month Day Year) the shareholders unanimously adopted the amendment to change the corporate name. We certify under the penalties of Section 415-136, Hawaii Revised Statutes, that we have read the above statements, and that the same are true and correct. Witness our hands this 29th day of December, 1992. Timothy J. Simpson, Vice Pres., Jeffrey R. Horowitz, Senior Vice Pres., Assistant - --------------------------------------- ------------------------------------ (Type/Print Name & Title) Secretary (Type/Print Name & Title) Secretary /s/ Jeffrey R. Horowitz /s/ Timothy J. Simpson - ----------------------- ---------------------- (Signature of Officer) (Signature of Officer) Exhibit T3A-52 CT System January 8, 1993 CT Corporation System PO Box 939 Honolulu, HI 96808 808-521-9200 Fax 808 531-8738 {xx} SPECIAL HANDLING State of Hawaii Department of Commerce and Consumer Affairs Business Registration Division P.O. Box 40 Honolulu, Hawaii 96810 RE: OGDEN PROJECTS OF HAWAII, INC. (FORMERLY: COMBUSTION ENGINEERING HAWAII, INC.) Ladies and Gentlemen: In connection with the above-referenced entity, we enclose the following: 1. Articles of Amendment to Change Corporate Name. 2. CT Corporation System Check No. UC 21681 in the amount of $25.00 and CSFW Check No. 82101 of $40.00 in payment of the filing and special handling fees. Please affix your receipt stamp to the enclosed copy of this letter and documents. When the processed documents are ready for pick-up, kindly call me at 544-3845. Thank you in advance for your assistance. Yours very truly, /s/ Carolyn K. Swartz ---------------------------- Carolyn K. Swartz Special Assistant Secretary The Corporation Company, Inc. Enc. Please hold the papers and call me if there are any problems. Exhibit T3A-52 CSC - WILMINGTON SUITE 400 2711 CENTERVILLE ROAD WILMINGTON DE 19808 800-927-9800 302-636-5454 Re: CONVANTA PROJECTS OF HAWAII, INC. To Whom it May Concern: Please accept this letter as our intent to cancel the above corporate name. The name was reserved by Corporation Service Company and we are hereby releasing the name. Thank you for your acceptance of this letter. Very truly yours, /s/ Carol K. Dolor -------------------- Carol K. Dolor Asst. Vice President Exhibit T3A-52 STATE OF HAWAII DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS Business Registration Division 1010 Richards Street Mailing Address: P.O. Box 40, Honolulu, Hawaii 96810 ARTICLES OF CORRECTON (Section 415-55.6, Hawaii Revised Statutes) PLEASE TYPE OF PRINT LEGIBLY IN BLACK INK 1. Name of the corporation: OGDEN PROJECTS OF HAWAII, INC. 2. Describe the document to be corrected, including the file date, or attach a copy of the document to be corrected: Articles of Amendment to Change Corporate Name filed on January 8, 1993 3. Specify the incorrect statement and give the reason it is incorrect or describe the manner in which the document was defectively executed, attested, sealed, verified, or acknowledged: The name change was authorized by unanimous written consent of the sole shareholder on January 8, 1993. In item #5 on the Articles of Amendment, it was stated that the written consent was dated December 29, 1992. This was due to a typographical error. Additionally, the Articles of Amendment should have been dated January 8, 1993, but were also dated December 29, 1992, due to typographical error. 4. The incorrect statement or defective execution is corrected as follows or as attached hereto: 5. By written consent dated January 8, 1993, the shareholders unanimously adopted the amendment to change the corporate name." "Witness our hands this 8th day of January, 1993." We certify under the penalties of Section 415-136, Hawaii Revised Statues, that we have read the above statements and that the same are true and correct. Witness our hands this 25th day of February, 1993. Jeffrey R. Horowitz, Timothy J. Simpson, Senior Vice Pres., Vice Pres., Assistant - --------------------------------------- -------------------------------------- (Type/Print Name & Title) Secretary (Type/Print Name & Title) Secretary /s/ Jeffrey R. Horowitz /s/ Timothy J. Simpson - ----------------------- ---------------------- (Signature of Officer) (Signature of Officer) Signature must be in black ink. Articles must be signed by two individuals who are officers of the corporation. Exhibit T3A-52 STATE OF HAWAII DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS Business Registration Division 1010 Richards Street Mailing Address: P.O. Box 40, Honolulu, Hawaii 96810 ARTICLES OF AMENDMENT TO CHANGE CORPORATE NAME (Section 415-61, Hawaii Revised Statutes) PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK The undersigned duly authorized officers of the corporation submitting these Articles of Amendment, certify as follows: 1. The present name of the corporation is: OGDEN PROJECTS OF HAWAII, INC.#44074D1 2. The name of the corporation is changed to: COVANTA PROJECTS OF HAWAII, INC. 3. The total number of shares outstanding is: 1,000 4. The amendment to change the corporation name was adopted (check one): [ ] at a meeting of the shareholders held on_________________________________ (Month Day Year) Number of Shares Voting Number of Shares Voting Class/Series For Amendment Against Amendment or |X| by written consent dated February 28, 2001 which all of the (Month Day Year) shareholders signed. We certify under the penalties of Section 415-136, Hawaii Revised Statutes, that we have read the above statements and that the same are true and correct. Signed this 28th day of February, 2001 Anthony Orlando, EVP Patricia Collins, Asst. Secretary - -------------------------------- --------------------------------- (Type/Print Name & Title) (Type/Print Name & Title) /s/ Anthony Orlando /s/ Patricia Collins - ------------------- ------------------- (Signature of Officer) (Signature of Officer) SEE INSTRUCTIONS ON REVERSE SIDE. The articles must be signed by two individuals who are officers of the corporation. Exhibit T3A-52 CT System March 5, 1993 CT Corporation System PO Box 939 Honolulu, HI 96808 808-521-9200 Fax 808 531-8738 {xx} SPECIAL HANDLING State of Hawaii Department of Commerce and Consumer Affairs Business Registration Division P.O. Box 40 Honolulu, Hawaii 96810 RE: OGDEN PROJECTS OF HAWAII, INC. Ladies and Gentlemen: In connection with the above-referenced entity, we enclose the following: 1. ARTICLES OF CORRECTION. 2. CSFW CHECK NO. 84049 IN THE AMOUNT OF $25.00 IN PAYMENT OF THE FILING FEE. Please affix your receipt stamp to the enclosed copy of this letter and documents. When the processed documents are ready for pick-up, kindly call me at 544-3845. Thank you in advance for your assistance. Yours very truly, /s/ Carolyn K. Swartz Carolyn K. Swartz Special Assistant Secretary The Corporation Company, Inc. Enc. Please hold the papers and call me if there are any problems. EX-99.T3A54 50 exhibit_t3a-53.txt Exhibit T3A-53. DELAWARE PAGE 1 THE FIRST STATE I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS FILED FROM AND INCLUDING THE RESTATED CERTIFICATE OF "COVANTA PROJECTS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: RESTATED CERTIFICATE, FILED THE TWENTY- THIRD DAY OF JUNE, A.D. 1989, AT 10 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE FIRST DAY OF FEBRUARY, A.D. 1990, AT 10 O'CLOCK A.M. CERTIFICATE OF RETIREMENT, FILED THE SECOND DAY OF MARCH, A.D. 1990, AT 4 O'CLOCK P.M. CERTIFICATE OF RETIREMENT, FILED THE TWENTY-SIXTH DAY OF APRIL, A.D. 1990, AT 11:30 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, FILED THE TWENTY-NINTH DAY OF DECEMBER, A.D. 1994, AT 10:30 O'CLOCK A.M. CERTIFICATE OF MERGER, FILED THE TWENTY-NINTH DAY OF DECEMBER, A.D. 1994, AT 1:15 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. 1 Exhibit T3A-53. DELAWARE PAGE 2 THE FIRST STATE CERTIFICATE OF OWNERSHIP, FILED THE NINETEENTH DAY OF AUGUST, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE NINETEENTH DAY OF AUGUST, A.D. 1996, AT 9:01 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-SIXTH DAY OF AUGUST, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE FIFTEENTH DAY OF OCTOBER, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE FIFTEENTH DAY OF MARCH, A.D. 1999, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN PROJECTS, INC." TO "COVANTA PROJECTS, INC.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE EIGHTH DAY OF JUNE, A. D. 2001, AT 9 O'CLOCK A.M. /s/ Harriet Smith Windsor ------------------------- Harriet Smith Windsor, Secretary of State AUTHENTICATION: 2955547 DATE: 02-26-04 2 Exhibit T3A-53. THIRD RESTATED CERTIFICATE OF INCORPORATION OF OGDEN PROJECTS, INC. Pursuant to Section 245 of the General Corporation Law of the State of Delaware The undersigned Vice President and Assistant Secretary of Ogden Projects, Inc., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), hereby certify as follows: 1. The Corporation's name is Ogden Projects, Inc. The date of filing of its original Certificate of Incorporation with the Secretary of State of Delaware is May 4, 1984. 2. This Third Restated Certificate of Incorporation amends the Second Restated Certificate of Incorporation of the corporation by (a) specifically prohibiting cumulative voting in the election of directors, (b) providing for a classified board of directors, (c) providing that no action be taken by stockholders except at an annual or special meeting of stockholders, (d) revising the circumstances under which a director may be personally liable to the Corporation, and (e) eliminating the provision relating to indemnification of directors, and it restates and integrates into a single instrument all of the provisions thereof as so amended. This Third Restated Certificate of Incorporation was proposed by the Board of Directors and adopted by the sole stockholder of the 3 Exhibit T3A-53. Corporation in the manner and by the vote prescribed by Section 242 of the General Corporation Law of the State of Delaware and is as follows: 4 Exhibit T3A-53. THIRD RESTATED CERTIFICATE OF INCORPORATION OF OGDEN PROJECTS, INC. Pursuant to Section 245 of the General Corporation Law of the State of Delaware SECTION 1. The name of the Corporation is OGDEN PROJECTS, INC. SECTION 2. The registered office of the Corporation in the State of Delaware is located at 1209 Orange Street, City of Wilmington, County of New Castle. The name of the registered agent at that address is The Corporation Trust Company. SECTION 3. The nature of the business and the objects and purposes proposed to be transacted, promoted or carried on by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. SECTION 4. (a) The total number of shares of capital stock that may be issued by the Corporation is 41,000,000 of which 1,000,000 shares of the par value of $1.00 each shall be Preferred Stock (hereinafter referred to as "Preferred Stock") and 40,000,000 shares of the par value of $.50 each shall be Common Stock (the "Common Stock"). Shares of the stock of any class of the Corporation may be issued from time to time for such legally sufficient consideration as may be fixed from time to time by the Board of Directors. (b) No holder of any stock of any class of the Corporation shall, in the capacity of such holder, have any right to purchase or subscribe for any other shares of the capital stock of any class of the Corporation which it may issue or sell, whether or not such stock is convertible into or exchangeable for any stock of the Corporation of any other class, and whether out of the number of shares authorized by the Certificate of Incorporation of the Corporation as originally filed, or by any amendment thereof, or out of shares of the capital stock of any class of the Corporation acquired by it after the issue thereof, nor shall any holder of any such stock of any class, in the capacity of such holder, have any right to purchase or subscribe for any other obligation which the 5 Corporation may issue or sell that shall be convertible into, or exchangeable for, any shares of the capital stock of any class of the Corporation or to which shall be attached or appertain any warrant or warrants or any instrument or instruments that shall confer upon the owner of such obligation, warrant or instrument the right to subscribe for, or to purchase from the Corporation, any shares of its capital stock of any class. A description of the different classes of stock of the Corporation and a statement of the designations and the powers, preferences and rights, and the qualifications, limitations or restrictions thereof, in respect of each class of said stock are as follows: 6 Exhibit T3A-53. PART I Provisions Applicable to All Series of Preferred Stock. 1.01. (a) The Preferred Stock may be issued from time to time in one or more series. The terms of each series shall be as specified in this Part I and in the resolution or resolutions adopted by the Board of Directors providing for the issue of such series, which resolution or resolutions the Board of Directors is hereby expressly authorized to adopt. Such resolution or resolutions with respect to a series shall specify: (1) the number of shares to constitute such series and the distinctive designation thereof; (2) the annual dividend rate on the shares of such series, whether or not dividends shall be cumulative, and the date or dates from which dividends shall accrue; (3) the time or times and price or prices of redemption, if any, of the Shares of such series; (4) the terms and conditions of a retirement or sinking fund, if any, for the purchase or redemption of the shares of such series; (5) the amount which shares of such series shall be entitled to receive in the event of any liquidation, dissolution or winding up of the Corporation; (6) the terms and conditions, if any, on which shares of such series shall be convertible into, or exchangeable for, shares of stock of any other class or classes, or other series of the same class, of the Corporation; (7) the voting rights, if any, of shares of such series in addition to those granted by Paragraph 1.05 of this Section 4; (8) the status as to reissuance or sale of shares of such series redeemed, purchased or otherwise reacquired, or surrendered to the Corporation on conversion or exchange; (9) the conditions and restrictions, if any, on the payment of dividends or on the making of other distributions on, or the purchase, redemption or other acquisition by the Corporation or any subsidiary, of the Common Stock or of any other class of stock of the Corporation ranking junior to the shares of such series as to dividends or upon liquidation; (10) the conditions and restrictions, if any, on the creation of indebtedness of the Corporation, or any subsidiary, or on the issue of any additional stock ranking on a parity with or prior to the shares of such series as to dividends or upon liquidation; and (11) such other preferences, rights, restrictions and qualifications as shall not be inconsistent herewith. (b) All shares of the Preferred Stock shall rank equally and be identical in all respects regardless of series, except as to terms which may be specified by the Board of Directors pursuant to the foregoing provisions of this Paragraph 1.01. All shares of any one series of the Preferred Stock shall 7 Exhibit T3A-53. be of equal rank and identical in all respects, except that if shares of any one series are issued at different times, the subsequently issued shares need not be entitled to receive dividends previously paid on the outstanding shares of such series. 1.02. The holders of the Preferred Stock shall be entitled to receive out of the net profits or net assets of the Corporation available for dividends, when and as declared by the Board of Directors, cash dividends at the annual rate specified for each particular series, and no more, payable quarterly from and on the date or dates specified for each such series, before any dividends shall be declared and paid upon or set apart for the Common Stock. If dividends on the Preferred Stock of any series are not paid in full when payable or declared in full and sums set apart for the payment thereof, then no dividends shall be declared and paid on any Preferred Stock unless declared and paid ratably on all shares of each series of the Preferred Stock then outstanding, including dividends accrued or in arrears, if any, in proportion to the respective amounts that would be payable per share if all such dividends were declared and paid in full. 1.03. (a) The Preferred Stock shall be preferred over the Common Stock as to assets, and in the event of any liquidation or dissolution or winding up of the Corporation (whether voluntary or involuntary), the holders of the Preferred Stock shall be entitled to receive out of the assets of the Corporation available for distribution to its stockholders, whether from capital, surplus or earnings, the amount specified for each particular series, together with all dividends (whether or not earned) accrued or in arrears, for every share of their holdings of Preferred Stock before any distribution of the assets shall be made to the holders of the Common Stock, and shall be entitled to the holders of the Common Stock, and shall be entitled to no other or further distribution. If upon any liquidation, dissolution or winding up of the Corporation, the assets distributable among the holders of Preferred Stock shall be insufficient to permit the payment in full to the holders of the Preferred Stock of all preferential amounts payable to all such holders, then the entire assets of the Corporation thus distributable shall be distributed ratably among the holders of the Preferred Stock in proportion to the respective amounts that would be payable per share if such assets were sufficient to permit payment in full. 8 Exhibit T3A-53. (b) For purposes of this Paragraph 1.03, neither the consolidation nor merger of the Corporation with or into any other corporation, nor any sale, lease, exchange or conveyance of all or any part of the property, assets or business of the Corporation shall be deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning of this Paragraph 1.03, unless the Board of Directors of the Corporation elects to treat such transaction as a liquidation, dissolution or winding up of the Corporation. 1.04. The whole or any part of the Preferred Stock at any time outstanding, or the whole or any part of any series thereof, may be redeemed by the Corporation at its election, expressed by resolution of the Board of Directors, upon notice to the holders of record of the Preferred Stock to be redeemed, given as hereinafter provided, at the time or times and price or prices specified for each particular series, and in all cases, only as permitted by the terms of the particular series together with all dividends (whether or not earned) accrued or in arrears (hereinafter in this Paragraph 1.04 called the "redemption price"). If less than all of the Preferred Stock then outstanding, or of any series thereof, is to be redeemed, the redemption may be made either by lot or pro rata, in such manner as may be prescribed by resolution of the Board of Director. A notice of such election shall be mailed by the Corporation, postage prepaid, not less than 10 nor more than 60 days prior to the date specified in such notice as the redemption date, addressed to the respective holders of record of the Preferred Stock to be redeemed at their respective addresses as the same shall appear on the stock transfer records of the Corporation. Notice having been so given, unless default shall be made by the Corporation in providing moneys for the payment of the redemption price pursuant to such notice, all dividends on Preferred Stock thereby called for redemption shall cease to accrue from and after the date of redemption specified in such notice. The notice may specify a date (which may be on or prior to the date of redemption so specified) on which the Corporation shall provide the moneys for the payment of the redemption price by depositing the amount thereof with a bank or trust company doing business in the Borough of Manhattan, the City of New York, and having a capital surplus of at least $10,000,000, and on the date so specified and upon such deposit, all rights of the holders of Preferred Stock called for redemption, as stockholders of the Corporation, except the right to receive the redemption price (but without interest), and the right, if any, to exercise all privileges of conversion specified for any particular series, shall cease. Any interest allowed on moneys 9 Exhibit T3A-53. so deposited which shall remain unclaimed by the holders of such Preferred Stock at the end of six years after the redemption date shall become the property of, and be paid by such bank or trust company to, the Corporation. 1.05. So long as any shares of any series of Preferred Stock shall be outstanding and unless the consent or approval of a greater number of shares shall then be required by law, without first obtaining the consent or approval of the holders of at least two-thirds of the number of shares of each series at the time outstanding, given in person or by proxy at a meeting at which the holders of Preferred Stock shall be entitled to vote separately as a class, the Corporation shall not: (1) authorize shares of any class of Senior Securities (as hereinafter defined); (2) reclassify any shares of stock of the Corporation into shares of Senior Securities; (3) authorize any security exchangeable for, convertible into, or evidencing the right to purchase any shares of Senior Securities; (4) amend, alter or repeal the Third Restated Certificate of Incorporation of the Corporation to alter or change the preferences, rights or powers of the Preferred Stock of any series so as to affect such stock adversely or (5) effect the voluntary liquidation, dissolution or winding up of the Corporation, or the sale, lease, exchange of all or substantially all of the assets, property or business of the Corporation, or the merger or consolidation of the Corporation with or into any other corporation (except a wholly-owned subsidiary of the Corporation), provided, however, that no vote of the holders of the Preferred Stock either as a class or series or with the holders of shares of Common Stock shall be required in the case of a merger or consolidation or a sale, exchange or conveyance of all or substantially all of the assets, property or business of the Corporation (such transactions being hereinafter in this provision referred to as a "reorganization") if (a) the resulting, surviving or acquiring corporation will have after such reorganization no stock either authorized or outstanding (except such stock of the Corporation as may have been authorized or outstanding immediately preceding such reorganization, or such stock of the resulting, surviving or acquiring corporation as may be issued in exchange therefor) ranking prior to the Preferred Stock or the stock of the resulting, surviving or acquiring corporation issued in exchange therefor, and (b) each holder of shares of Preferred Stock immediately preceding such reorganization will receive in exchange therefor the same number of shares of stock, with substantially the same preferences, rights and powers, of the resulting, surviving or acquiring corporation. 10 Exhibit T3A-53. PART II Special Provisions Applicable to Initial Series of Preferred Stock. The powers, privileges, rights, qualifications, limitations and restrictions of the initial series of Preferred Stock of the Corporation, in addition to those set forth in Part I of this Section, shall be as follows: 2.01. The designation of the initial series of Preferred Stock shall be "Series A Preferred Stock, par value $1.00 per share" (the "Series A Preferred Stock"). The maximum number of outstanding shares of Series A Preferred Stock shall be 40,000 shares. 2.02. The Series A Preferred Stock shall, with respect to right, on liquidation, winding up and dissolution, rank prior to all classes of the Corporation's Common Stock, and equal to all other series of Preferred Stock except for such Preferred Stock the terms of which expressly provide that such Preferred Stock will rank senior to or junior to the Series A Preferred Stock. The Series A Preferred Stock shall, with respect to dividend rights, rank prior to the Common Stock and equal to all other series of Preferred Stock except for such Preferred Stock the terms of which expressly provide that such Preferred Stock will rank senior to or junior to the Series A Preferred Stock. All equity securities to which the Series A Preferred Stock ranks prior, including the Common Stock, are collectively referred to as the "Junior Securities," all series of Preferred Stock with which the Series A Preferred Stock ranks on a parity are collectively referred to herein as the "Parity Securities," and all series of Preferred Stock to which the Series A Preferred Stock ranks junior, whether with respect to dividends or upon liquidation, dissolution, winding up or otherwise, are collectively referred to herein as the "Senior Securities." 2.03. The holders of the shares of Series A Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors out of funds legally available for such purpose, quarterly cash dividends payable on the last business day of March, June, September and December in each year, commencing on the last business day of March 1990, at a rate of $17.50 per share. Dividends shall be cumulative and shall accrue, whether or not declared, from and after January 1, 1990. No Distribution shall be made on Common Stock or any other Junior Securities while any dividends on the Series A Preferred Stock are in arrears. For the purposes of this paragraph, the 11 Exhibit T3A-53. term "Distribution" shall mean (i) the declaration or payment of any dividend on or in respect of any shares of any class of capital stock of the Corporation, (ii) the purchase or other retirement of any shares of any class of capital stock of the Corporation directly, or indirectly through a subsidiary or otherwise, of any shares of any class of capital stock of the Corporation. 2.04. The shares of Series A Preferred Stock shall be preferred over the shares of Junior Securities as to assets so that in the event of any liquidation, voluntary or involuntary, the holders of the Series A Preferred Stock shall be entitled to receive out of the assets of the Corporation, or the proceeds thereof, available for distribution to its stockholders after payment in full of the liquidation preference amount of any Senior Securities, before any payment or distribution is made to holders of shares of Junior Securities, an amount equal to $1,000 per share. If the assets of the Corporation are not sufficient to pay in full the liquidation preference amounts payable to holders of outstanding shares of Series A Preferred Stock and Parity Securities, then the holders of all such shares shall share ratably in such distribution of assets in accordance with the amounts which would be payable on such distribution if the liquidation preference amounts to which the holders of outstanding shares of Series A Preferred Stock and the holders of outstanding shares of such Parity Securities are entitled were paid in full. After payment in full of the liquidation preferences of the Series A Preferred Stock and any Parity Securities, the holders of the Common Stock shall be entitled, to the exclusion of the holders of the Series A Preferred Stock and any Parity Securities, to share ratably in all the assets of the Corporation then remaining. 2.05. The Series A Preferred Stock shall be redeemable as hereinafter set forth upon payment in cash in respect of each share redeemed of the sum of $1,000 plus an amount equal to all dividends accrued thereon to the date of redemption and theretofore unpaid (the "Series A Preferred Redemption Price"). (a) The Corporation shall, on the fifth anniversary of the date of issue of the Series A Preferred Stock (the "Series A Mandatory Redemption Date"), redeem out of funds legally available therefor at the Series A Preferred Redemption Price, payable in cash, all such shares of Series A Preferred Stock as may then be outstanding. No Distribution shall be made on Common Stock or any other Junior Securities on or after the 12 Exhibit T3A-53. Series A Mandatory Redemption Date if and so long as the Series A Preferred Stock has not been redeemed. (b) To the extent permitted by law, the Corporation may at its option by resolution of its Board of Directors redeem shares of the Series A Preferred Stock in whole at any time or in part, from time to time, at the Series A Preferred Redemption Price payable in cash, provided, however, that in no event shall shares of the Series A Preferred Stock be redeemed prior to the first anniversary of the date of issuance thereof. (c) Any shares of the Series A Preferred Stock redeemed pursuant to this paragraph or otherwise acquired by the Corporation in any manner whatsoever shall be permanently retired and shall not under any circumstances be reissued; and the Corporation may from time to time take such appropriate corporate action as may be necessary to reduce the authorized Series A Preferred Stock accordingly. 2.06 (a) The holders of shares of Series A Preferred Stock shall have the voting rights specified in this Third Restated Certificate of Incorporation and any other rights provided by law. (b) The creation, authorization or issuance of any shares of any Junior Securities, Parity Securities or Senior Securities (collectively, the "Additional Securities") shall not be deemed to affect materially and adversely the rights, preferences, privileges, and voting rights of shares of Series A Preferred Stock and may be effected without the consent of holders thereof, provided that the terms of such Additional Securities are not inconsistent and do not in any way conflict with the terms of the Series A Preferred Stock, or with the creation, authorization or issuance of any obligation or security convertible into or evidencing the right to purchase any Additional Securities. 2.07. The holders of Series A Preferred Stock shall have no pre-emptive rights, whether upon the issuance of additional shares of Series A Preferred Stock, of any other class or series of Preferred Stock (whether constituting Junior Securities, Parity Securities or Senior Securities) or of Common Stock. PART III. Provisions Applicable to Common Stock. 13 Exhibit T3A-53. 3.01. After the requirements in respect of dividends upon the Preferred Stock, as hereinbefore set forth, shall have been met, the holders of the Common Stock shall be entitled to receive out of any remaining net profits or net assets of the Corporation available for dividends, such dividends as may from time to time be declared by the Board of Directors, and the holders of the Common Stock shall be entitled to share ratably in any dividends so declared to the exclusion of the holders of the Preferred Stock. 3.02. In the event of any liquidation or dissolution or winding up of the Corporation (whether voluntary or involuntary), after payment in full of the amounts hereinbefore stated to be payable in respect of the Preferred Stock, the holders of the Common Stock shall be entitled, to the exclusion of the holders of the Preferred Stock, to share ratably per share of Common Stock in all the assets of the Corporation then remaining. 3.03. Except as otherwise provided in this Third Restated Certificate of Incorporation or as otherwise made mandatory by law, each holder of Common Stock shall be entitled to one vote for each full share of such stock then outstanding and of record in his name on the books of the Corporation and the holders of the Common Stock shall vote together with the holders of any series of Preferred Stock who are entitled to vote in such manner and the holders of any other class of stock of the Corporation who are entitled to vote in such manner, and not as a separate class. SECTION 5. (a) At all meetings of the stockholders of the Corporation, each holder of record of Common Stock shall be entitled to one vote for each share of such class of stock standing in his name on the books of the Corporation, subject to the right of the Board of Directors to determine a record date for the purpose of determining the stockholders entitled to vote at any particular meeting. Cumulative voting shall not be permitted at any election of directors. (b) The affairs of this Corporation shall be conducted by a Board of Directors. Except as otherwise provided by this Section 5, the number of directors of the Corporation, not less than 8 nor more than 16, shall be fixed from time to time by the vote of a majority of the entire Board; provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office. Commencing with the effective date of this Third Restated 14 Exhibit T3A-53. Certificate of Incorporation, the directors of the Corporation shall be divided into three classes: Class I, Class II and Class III, each such class, as nearly as possible, to have the same number of directors. The term of office of the initial Class I directors shall expire at the annual election of directors by the stockholders of the Corporation in 1990, the term of the office of the initial Class II directors shall expire at the annual election of directors by the stockholders of the Corporation in 1991, and the term of the office of the initial Class III directors shall expire at the annual election of directors by the stockholders of the Corporation in 1992, or in each case thereafter when their respective successors are elected by the stockholders and qualify. At each annual election of directors by the stockholders of the Corporation held after the effective date of this Third Restated Certificate of Incorporation, the directors chosen to succeed those whose terms are then expired shall be identified as being of the same class as the directors they succeed and shall be elected by the stockholders of the Corporation for a term expiring at the third succeeding annual election of directors, or thereafter when their respective successors in each case are elected by the stockholders and qualify. In the event that the holders of any class of stock of the Corporation, other than the holders of Common Stock, are entitled to elect directors as provided in Section 4, then the provisions of Section 4 with respect to their rights shall apply. The number of directors that may be elected by the holders of any class of stock, other than the holders of Common Stock, shall be in addition to the number specified by this Section 5 and any such additional directors shall be elected for terms expiring at the next annual meeting of stockholders and without regard to the classification of the remaining members of the Board of Directors. If at any meeting for the election of directors, more than one class of stock, voting separately as classes, shall be entitled to elect one or more directors and there shall be a quorum of only one such class of stock, that class of stock shall be entitled to elect its quota of directors notwithstanding the absence of a quorum of the other class or classes of stock. (c) In case of an increase in the number of director, subject to the provisions of Section 4, the additional directors may be elected by the Board of Directors and such directorships thereby created shall be apportioned among the 15 Exhibit T3A-53. classes of directors so as to maintain such classes as nearly equal in number as possible. In case of vacancies in the Board of Directors, subject to the provisions of Section 4, a majority of the remaining directors may elect directors to fill such vacancy. SECTION 6. The Corporation may, from time to time, upon the vote of a majority of all the directors of the Corporation and of the holders of a majority in number of shares ,then issued and outstanding and entitled to vote, increase or reduce the amount of the authorized number of shares of any class or classes of stock, or may create or authorize one or more other classes of stock, any or all of which classes may be stock with par value or stock without par value and with such designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions thereof as shall be determined by or in accordance with said vote, which may be the same or different from the voting powers, designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions thereof, of the classes of stock of the Corporation then authorized. SECTION 7. The Corporation shall be entitled to treat the person in whose name any share, right or option is registered as the owner thereof, for all purposes, and shall not be bound to recognize any equitable or other claim to or interest in such share, right or option on the part of any other person, whether or not the Corporation shall have notice thereof, save as may be expressly provided by the laws of the State of Delaware. SECTION 8. The Corporation shall not consolidate with, or merge into or with, or sell, lease, exchange, transfer or otherwise dispose of all or substantially all of its assets to or with, any other corporation except upon the affirmative vote of the holders of two-thirds of the total of shares of Common Stock of the Corporation then outstanding and entitled to vote thereon. SECTION 9. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Law as presently in effect or as the same may hereafter be amended. No amendment, modification or repeal of this Section 9 16 Exhibit T3A-53. shall adversely affect any right or protection that exists at the time of such amendment, modification or repeal. SECTION 10. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized: (a) To make, amend, alter, change, add to or repeal by-laws for the Corporation, without any action on the part of the stockholders except to the extent that such action by stockholders may be required in a by-law. The by-laws made by the directors may be amended, altered, changed, added to or repealed by the stockholders. (b) From time to time to determine whether and to what extent, at what time and place, and under what conditions and 1regulatione the accounts and books of the Corporation, or any of them, shall be open to the inspection of any stockholder; and no stockholder shall have any right to inspect any account or book or document of the Corporation except as conferred by statute or by-laws or as authorized by a resolution of the stockholders or Board of Directors. SECTION 11. No action shall be taken by stockholders of the Corporation except at an annual or special meeting of stockholders of the Corporation; provided however, that stockholders may take action by written consent If all, of the outstanding voting securities of the Corporation are owned by a single stockholder. SECTION 12. Notwithstanding any other provisions of this Third Restated Certificate of Incorporation or the By-laws of the Corporation (and notwithstanding that a lesser percentage may be specified by law, this Certificate of Incorporation or the By-laws of the Corporation), the provisions of Sections 5, 8, 11 or 12 may not be repealed or amended in any respect, nor may any provision be adopted inconsistent with Sections 5, 8, 11 or 12 unless such action is approved by the affirmative vote of the holders of two-thirds of the total of shares of stock of the Corporation then outstanding and entitled to vote thereon. This Third Restated Certificate of Incorporation has been duly adopted pursuant to Section 245 of the General Corporation Law of the State of Delaware. 17 Exhibit T3A-53. IN WITNESS WHEREOF, Ogden Projects, Inc. has caused this Third Restated Certificate of Incorporation to be executed in its corporate name this 22nd day of June, 1989. OGDEN PROJECTS, INC. By: /s/ Gloria A. Mills --------------------- Name: Gloria A. Mills First Executive Vice President and Managing Director ATTEST: By: /s/ J.L. Effinger ----------------- Name: J.L. Effinger Assistant Secretary 18 Exhibit T3A-53. CERTIFICATE OF OWNERSHIP AND MERGER MERGING OGDEN BIO-MASS OF DELANO, INC. AND OGDEN PROJECTS OF DELANO, INC. INTO OGDEN PROJECTS, INC. OGDEN PROJECTS, INC., a corporation organized and existing under the laws of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That this corporation was incorporated on the 4th day of May, 1984, pursuant to the General Corporation Law of the State of Delaware. SECOND: That this corporation owns all of the outstanding shares (of each class) of the stock of Ogden Bio-Mass of Delano, Inc., a corporation incorporated on the 7th day of March, 1985, pursuant to the General Corporation Law of the State of Delaware. That this corporation owns all of the outstanding shares (of each class) of the stock of Ogden Projects of Delano, Inc., a corporation incorporated on the 7th day of March, 1985, pursuant to the General Corporation Law of the State of Delaware. THIRD: That this corporation, by the following resolutions of its Board of Directors, duly adopted by the unanimous written consent of its members, filed with the minutes of the Board on the 29th day of November, 1989, determined to and did merge into 19 Exhibit T3A-53. itself said Ogden Bio-Mass of Delano, Inc. and Ogden Projects of Delano, Inc.: "RESOLVED, that Ogden Projects, Inc. merge, and it hereby does merge into itself said Ogden Bio-Mass of Delano, Inc. and Ogden Projects of Delano, Inc.; and FURTHER RESOLVED, that the merger shall be effective upon the date of filing with the Secretary of State of Delaware; and FURTHER RESOLVED, that the proper officers of this corporation be and they hereby are directed to make and execute a Certificate of Ownership and Merger setting forth a copy of the resolutions to merge said Ogden Bio-Mass of Delano, Inc. and Ogden Projects of Delano, Inc. and assume their liabilities and obligations, and the date of adoption thereof, and to cause the same to be filed with the Secretary of State and a certified copy recorded in the office of the Recorder of Deeds of New Castle County and to do all acts and things whatsoever, whether within or without the State of Delaware, which may be in anywise necessary or proper to effect said merger." FOURTH: Anything herein or elsewhere to the contrary notwithstanding, this merger may be amended or terminated and abandoned by the Board of Directors of Ogden Projects, Inc. at any time prior to the date of filing the merger with the Secretary of State. IN WITNESS WHEREOF, said Ogden Projects, Inc. has caused this certificate to be signed by Scott G. Mackin, its First Executive Vice President, and attested by J. L. Effinger, its Assistant Secretary, this 1st day of December, 1989. OGDEN PROJECTS, INC. 20 Exhibit T3A-53. By: /s/ Scott G. Macklin -------------------- Scott G. Mackin First Executive Vice President ATTEST: By: /s/ J.L. Effinger ----------------- J.L. Effinger Assistant Secretary 21 Exhibit T3A-53. CERTIFICATE OF RETIREMENT OF STOCK AND REDUCTION OF CAPITAL OF OGDEN PROJECTS, INC. Ogden Projects, Inc. (the "Corporation"), a corporation organized and existing under the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That the Board of Directors of the Corporation by the unanimous written consent of its members, duly adopted and filed with the minutes of the Board a resolution which identified shares of Series A Preferred Stock, par value $1.00 per share, of the Corporation to be redeemed by the Corporation and which, upon the redemption thereof, had the status of retired shares, and applied to such redemption all of the capital represented by such shares. SECOND: That the shares of capital stock of the Corporation which are retired are identified as being Twenty-Five Thousand Eight Hundred Seventy-Eight (25,878) shares of the Series A Preferred Stock of the Corporation. THIRD: That the Corporation's Third Restated Certificate of Incorporation prohibits the reissuance of the shares of Series A Preferred Stock when so retired; and 22 Exhibit T3A-53. FOURTH: That pursuant to the provisions of Section 243 of the General Corporation Law of the State of Delaware, upon the date of the filing of this Certificate (the "Effective Date"), the Corporation's Third Restated Certificate of Incorporation shall be amended to effect a reduction in the authorized number of shares of the Series A Preferred Stock to the extent of Twenty-Five Thousand Eight Hundred Seventy-Eight (25,878) shares, being the total number of shares retired, with a par value of One Dollar ($1.00) per share and an aggregate par value of Twenty-Five Thousand Eight Hundred Seventy -- Eight Dollars ($25,878), so that, as of the Effective Date the authorized number of shares of Series A Preferred Stock shall be 14,122 shares. IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by David L. Sokol, its President, and attested by Scott G. Mackin, its Secretary, this 1st day of March, 1990. OGDEN PROJECTS, INC. By: /s/ David L. Sokol ------------------- President ATTEST: By: /s/ Scott G. Macklin -------------------- Secretary 23 Exhibit T3A-53. STATE OF NEW JERSEY : : ss. COUNTY OF ESSEX : BE IT REMEMBERED, that on this 1st day of March, 1990, in the County and State aforesaid, before me, the subscriber, a Notary Public authorized to take acknowledgments and proofs in said County and State, personally appeared David L. Sokol, who, I am satisfied is the President of Ogden Projects, Inc., a corporation, executed the within instrument and acknowledged that he signed the name of the corporation by himself as such officer, and acknowledged the foregoing instrument to be the act and deed of such corporation and that the facts stated therein are true. WITNESS my hand and seal the day and year aforesaid. /s/ Susan A. Twomey ----------------------------------- Notary Public My Commission Expires: SUSAN A. TWOMEY NOTARY PUBLIC OF NEW JERSEY MY COMMISSION EXPIRES JULY 21, 1990 24 Exhibit T3A-53. CERTIFICATE OF RETIREMENT OF STOCK AND REDUCTION OF CAPITAL OF OGDEN PROJECTS, INC. Ogden Projects, Inc. (the "Corporation"), a corporation organized and existing under the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That the Board of Directors of the Corporation by the unanimous written consent of its members, duly adopted and filed with the minutes of the Board a resolution which identified shares of Series A Preferred Stock, par value $1.00 per share, of the Corporation to be redeemed by the Corporation and which, upon the redemption thereof, had the status of retired shares, and applied to such redemption all of the capital represented by such shares. SECOND: That the shares of capital stock of the Corporation which are retired are identified as being Fourteen Thousand One Hundred Twenty-Two (14,122) shares of the Series A Preferred Stock of the Corporation, which shares constituted all outstanding shares of Series A Preferred Stock. THIRD: That the Corporation's Third Restated Certificate of Incorporation prohibits the reissuance of the shares of Series A Preferred Stock when so retired. 25 Exhibit T3A-53. FOURTH: That pursuant to the provisions of Section 243 of the General Corporation Law of the State of Delaware, upon the date of the filing of this Certificate (the "Effective Date"), the Corporation's Third Restated Certificate of Incorporation shall be amended to effect a reduction in the authorized number of shares of the Sense A Preferred Stock to the extant of Fourteen Thousand One Hundred Twenty-Two (14,122) shares with a par value of One Dollar ($1.00) per share and an aggregate par value of Fourteen Thousand One Hundred Twenty-Two Dollars ($14,122). so that, as of the Effective Date, there shall be no authorized shares of Series A Preferred Stock. IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed by David L. Sokol, its President, and attested by Scott 0. Mackin, it. Secretary, this 26th day of April, 1990. OGDEN PROJECTS, INC. By: /s/ David L. Sokol ------------------ President ATTEST: By: /s/ Scott G. Macklin -------------------- Secretary 26 Exhibit T3A-53. STATE OF NEW JERSEY : : ss. COUNTY OF ESSEX : BE IT REMEMBERED, that on this 26th day of April, 1990, in the County and State aforesaid before me, the subscriber, a Notary Public authorized to take acknowledgments and proofs in said County and State, personally appeared David L. Sokol, who, I am satisfied is the President of Ogden Projects. inc., a corporation, executed the within instrument and acknowledged that he signed the name of the corporation by himself as such officer, and acknowledged the foregoing instrument to be the act and deed of such corporation and that the facts stated therein are true. WITNESS my hand and seal. the day and year aforesaid. /s/ Susan A. Twomey ----------------------------------- Notary Public My Commission Expires: SUSAN A. TWOMEY NOTARY PUBLIC OF NEW JERSEY MY COMMISSION EXPIRES JULY 21, 1990 27 Exhibit T3A-53. CERTIFICATE OF AMENDMENT OF THIRD RESTATED CERTIFICATE OF INCORPORATION OF OGDEN PROJECTS, INC. Under Section 242 of the General Corporation Law of the State of Delaware The undersigned, a corporation organized and existing under the General Corporation Law of Delaware (the "Corporation"), pursuant to the provisions of Section 242 of the Delaware General Corporation Law, hereby certifies that: FIRST: The name of the Corporation is OGDEN PROJECTS, INC. The name under which the Corporation was formed is Ogden Projects, Inc. SECOND: The Third Restated Certificate of Incorporation of this Corporation is hereby amended as follows: 1. to provide appraisal rights, pursuant to Section 262 of the Delaware General Corporation Law, to holders of common stock, par value $.50 per share of the Corporation. Part III of Section 4 of the Third Restated Certificate of Incorporation shall be revised to add the following Paragraph 3.04, to read in its entirety as follows: "3.04: In any merger of the corporation prior to June 30, 1995 with Ogden corporation or any direct or indirect wholly-owned subsidiary of Ogden Corporation, each holder of shares of Common Stock of the Corporation shall be entitled, upon compliance with the terms and conditions of Section 262 of the General Corporation Law of the State of Delaware as then in effect, to appraisal rights as provided in such Section 262, notwithstanding any statutory limitation on the availability of such rights that would be applicable in the absence of this Section. For purposes of paragraph (d) (1) of said Section 262, any notice to stockholders that otherwise complies with such paragraph, and any written demand furnished by a stockholder pursuant to such paragraph, shall be effective even if delivered prior to the effectiveness of this Paragraph of the Corporation's Certificate of Incorporation; provided that any such notice given to stockholders specifies that the proposed merger referred to therein will not become 28 Exhibit T3A-53. effective unless this Paragraph shall theretofore have become effective." THIRD: This Amendment to the Third Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Section 242 of the Delaware General Corporation Law. 29 Exhibit T3A-53. IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be affixed hereto and this instrument to be signed in its name by its Chairman of the Board and Chief Executive Officer and attested to by its Assistant Secretary this 29th day of December, 1994. ATTEST: OGDEN PROJECTS, INC. By: /s/ Jerry L. Effinger By: /s/ R. Richard Ablon -------------------------- ----------------------- Name: Jerry L. Effinger Name: R. Richard Ablon Title: Assistant Secretary Title: Chairman of the Board and Chief Executive Officer (CORPORATE SEAL) 30 Exhibit T3A-53. CERTIFICATE OF MERGER OF OPI ACQUISITION CORP. a Delaware corporation INTO OGDEN PROJECTS, INC. A Delaware corporation Pursuant to Section 251 of the Delaware General Corporation Law The undersigned corporation, organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That the name and state of incorporation of each of the constituent corporations in the merger is as follows: State of Name Incorporation OPI Acquisition Corp. Delaware Ogden Projects, Inc. Delaware SECOND: That an agreement of merger between the parties to the merger has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Section 251 of the General Corporation Law of the State of Delaware. THIRD: That Ogden Projects, Inc. a Delaware corporation, shall be the surviving corporation. FOURTH: That the Restated Certificate of Incorporation of Ogden Projects, Inc. will be amended and restated in its entirety as set forth in Exhibit A attached hereto. FIFTH: That the executed agreement of merger is on 31 Exhibit T3A-53. file at the principal place of business of the surviving corporation, the address of which is 40 Lane Road, Fairfield, New Jersey 07007. SIXTH: That a copy of the agreement of merger will be furnished by the surviving corporation, on request and without cost, to any stockholder of any constituent corporation. 32 Exhibit T3A-53. IN WITNESS WHEREOF, the undersigned corporation has caused its corporate seal to be affixed hereto and this instrument to be signed in its name and attested to by its officers thereunto duly authorized this 29th day of December, 1994. ATTEST: OGDEN PROJECTS, INC. By: /s/ Jerry L. Effinger By: /s/ R. Richard Ablon ------------------------- ---------------------- Name: Jerry L. Effinger Name: R. Richard Ablon Title: Assistant Secretary Title: Chairman of the Board and Chief Executive Officer (CORPORATE SEAL) 33 Exhibit T3A-53. Exhibit A FOURTH RESTATED CERTIFICATE OF INCORPORATION OF OGDEN PROJECTS, INC. The undersigned corporation, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of Delaware, does hereby certify as follows: FIRST: The name of the corporation is Ogden Projects, Inc. (hereinafter referred to as the "Corporation"). SECOND: The registered office of the Corporation is to be located at 1209 Orange Street, in the city of Wilmington, in the County of New Castle, in the State of Delaware. The name of its registered agent at that address is The Corporation Trust Company. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the Corporation is authorized to issue is one thousand (1,000) shares of common stock and the par value of each of such shares is $0.50. 34 Exhibit T3A-53. FIFTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation arid of its directors and stockholders: (1) The management of the business and the conduct of the affairs of the Corporation shall be vested in its Board of Directors. The number of directors of the Corporation shall be such as from time to time shall be fixed by, or in the manner provided in, the by-laws. Election of directors need not be by ballot unless the by-laws so provide. (2) The Board of Directors shall have powers without the assent or vote of the stockholders to make, alter, amend, change, add to or repeal the by-laws of the Corporation; to fix and vary the amount to be reserved for any proper purpose; to authorize and cause to be executed mortgages and liens upon all or any part of the property of the Corporation; to determine the use and disposition of any surplus or net profits; and to fix the times for the declaration and payment of dividends. (3) In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless, to the provisions of the 35 Exhibit T3A-53. statutes of Delaware, of this certificate, and to any by-laws from time to time made by the stockholders; provided, however, that no by-laws so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made. SIXTH: A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Law as presently in effect or as the same may hereafter be amended. No amendment, modification or repeal of this Section 7 shall adversely affect any right or protection that exists at the time of such amendment, modification or repeal. SEVENTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in the manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, directors and officers are subject to this reserved power. 36 Exhibit T3A-53. CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: I. The name of the corporation (hereinafter called the "corporation") is OGDEN PROJECTS, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15, 1996 /s/ {illegible} --------------------------- Authorized Officer 37 Exhibit T3A-53. CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN LAND MANAGEMENT, INC. (a Delaware corporation) INTO OGDEN PROTJECTS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Projects, Inc. [hereinafter sometimes referred to as the "Corporation"] is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares [of each class] of the stock of Ogden Land Management, Inc., which is also a business corporation of the State of Delaware. 3. On June 28, 1996, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Land Management, Inc. into the Corporation: RESOLVED that Ogden Land Management, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Land Management, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Land Management, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Land Management, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. Executed on 8/8, 1996 38 Exhibit T3A-53. By: /s/ Jeffrey R. Horowitz -------------------------------- Its Senior Vice President Jeffrey R. Horowitz 39 Exhibit T3A-53. CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN POWER SYSTEMS 7, INC. (a Delaware corporation) INTO OGDEN PROJECTS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Projects., Inc. [hereinafter sometimes referred to as the "Corporation"] is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares [of each class] of the stock of Ogden Power Systems 7, Inc., which is also a business corporation of the State of Delaware. 3. On June 28, 1996, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Power Systems 7, Inc. into the Corporation: RESOLVED that Ogden Power Systems 7, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Power Systems 7, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Power Systems 7, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Power Systems 7, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. Executed on 8/8, 1996 40 Exhibit T3A-53. By: /s/ Jeffrey R. Horowitz ---------------------------- Its Senior Vice President Jeffrey R. Horowitz 41 Exhibit T3A-53. CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN RECYCLING SYSTEMS, INC. (a Delaware corporation) INTO OGDEN PROJECTS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Projects, Inc. [hereinafter sometimes referred to as the "Corporation"] is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares [of each class] of the stock of Ogden Recycling Systems, Inc., which is also a business corporation of the State of Delaware. 3. On June 28, 1996, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Recycling Systems, Inc. into the Corporation: RESOLVED that Ogden Recycling Systems, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Recycling Systems, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Recycling Systems, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Recycling Systems, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. 42 Exhibit T3A-53. Executed on 8/8, 1996 OGDEN PROJECTS, INC. By: /s/ Jeffrey R. Horowitz ------------------------------ Its Senior Vice President Jeffrey R. Horowitz 43 Exhibit T3A-53. CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN PROJECTS OF CAMPO, INC. (a California corporation) OGDEN PROJECTS OF LAWRENCE, INC. (a Massachusetts corporation) INTO OGDEN PROJECTS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Projects, Inc., hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all the outstanding shares of common stock of Ogden Projects of Campo, Inc., which is a business corporation of the State of California. The Corporation is the owner of all the outstanding shares of common stock of Ogden Projects of Lawrence, Inc., which is a business corporation of the State of Massachusetts. 3. The laws of the jurisdiction and organization of Ogden Projects of Campo, Inc., and Ogden Projects of Lawrence, Inc. permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction. 4. The Corporation hereby merges Ogden Projects of Campo, Inc. and Ogden Projects of Lawrence. Inc. into the Corporation. 5. The following is a copy of the resolutions adopted on October 8, 1996 by the Board of Directors of the Corporation to merge the said Ogden Projects of Campo, Inc. and Ogden Projects of Lawrence, Inc. into the Corporation: RESOLVED that Ogden Projects of Campo, Inc. and Ogden Projects of Lawrence, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers, and franchises of Ogden Projects of Campo, Inc. and Ogden Projects of Lawrence, Inc. be vested in and held and enjoyed by 44 Exhibit T3A-53. this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Projects of Campo, Inc. and Ogden Projects of Lawrence, Inc. in its name. RESOLVED that this Corporation assume all of the obligations of Ogden Projects of Campo, Inc. and Ogden Projects of Lawrence, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware, California, Massachusetts and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the jurisdiction of organization of Ogden Projects of Campo, Inc. and Ogden Projects of Lawrence, Inc. and of this Corporation and in any other appropriate jurisdiction. Executed on September 26, 1996. OGDEN PROJECTS, INC. By: /s/ Jeffrey R. Horowitz --------------------------- Jeffrey R. Horowitz Senior Vice President 45 Exhibit T3A-53. CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN PROJECTS HOLDINGS, INC. (a Delaware corporation) INTO OGDEN PROJECTS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Projects, Inc., hereinafter sometimes referred to as the "Corporation", is a business corporation of the state of Delaware. 2. The Corporation is the owner of all of the outstanding shares of each class of the stock of Ogden Projects Holdings, Inc., which is also a business corporation of the State of Delaware. 3. On February 11, 1999, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Projects Holdings, Inc. into the Corporation: RESOLVED that Ogden Projects Holdings, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Projects Holdings, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Projects Holdings, Inc. In its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Projects Holdings, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of lay other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any 46 Exhibit T3A-53. other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective on its filing date. Executed on February 28, 1999 OGDEN PROJECTS, INC. By: /s/ Jeffrey R. Horowitz ------------------------------ Jeffrey R. Horowitz, Secretary 47 Exhibit T3A-53. CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN PROJECTS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN PROJECTS, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA PROJECTS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware, IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ____, 2001. /s/ Patricia Collins ------------------------------------ Name: Patricia Collins Title: Asst. Secretary 48 Exhibit T3A-53. CERTIFICATE OF OWNERSHIP AND MERGER OF Ogden Energy Engineering, Inc (Delaware corporations) INTO Covanta Projects, Inc. (a Delaware corporation) It is hereby certified that: 1. Covanta Projects, lnc. hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of each class of the stock of Ogden Energy Engineering, Inc., which is also a business corporation of the State of Delaware. 3. On April 30, 2001, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Energy Engineering, Inc. into the Corporation: RESOLVED that Ogden Energy Engineering, Inc be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Energy Engineering, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Energy Engineering, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Energy Engineering, Inc. RESOLVED that this Corporation 49 Exhibit T3A-53. shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be upon filing. Executed on May 10, 2001 OGDEN PROJECTS, INC. By: /s/ Jeffrey R. Horowitz ---------------------------------- Jeffrey R. Horowitz, Secretary 50 EX-99.T3A56 51 exhibit_t3a-56.txt EXHIBIT T3A-56 DELAWARE PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA SIGC ENERGY, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE NINTH DAY OF NOVEMBER, A.D. 1994, AT 1 O'CLOCK P.M. CERTIFICATE OF AMENDMENT, FILED THE THIRTIETH DAY OF DECEMBER, A.D. 1994, AT 2:30 O'CLOCK P.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN SIGC ENERGY, INC." TO "COVANTA SIGC ENERGY, INC.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. COURT ORDERED CERTIFICATE OF AMENDMENT, FILED THE FIFTEENTH DAY OF DECEMBER, A.D. 2003, AT 5 O'CLOCK P.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORSAID CORPORATION. /s/ Harriet Smith Windsor ------------------------------------------ Harriet Smith Windsor, Secretary of State 1 CERTIFICATE OF INCORPORATION OF OGDEN SIGC ENERGY, INC. 1. The name of the Corporation is: OGDEN SIGC ENERGY, INC. 2. The address of its registered office in the State of Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover, County of Kent. The name of its registered agent at such address is The Prentice Hall Corporation System, Inc. 3. The nature of business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Thousand (1,000) shares and all of such shares shall have a par value of $1.00 each. 5. The Board of Directors is authorized to make, alter or repeal the Bylaws of the Corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: Sharon G. Province Ogden Environmental and Energy Services Co., Inc. 5510 Morehouse Drive San Diego, CA 92121 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying accordingly have hereunto set my hand this 9th day of November, 1994. By: /s/ Sharon G. Province ----------------------------- Sharon G. Province Incorporator 2 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN SIGC ENERGY, INC. OGDEN SIGC ENERGY, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That pursuant to Section 141(f) of the General Corporation Law of the State of Delaware, the Board of Directors of said corporation duly adopted resolutions setting forth a proposed amendment of the Certificate of incorporation of said corporation, declaring said amendment to be advisable and submitting said amendment to the shareholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows: RESOLVED: That the Certificate of Incorporation of this corporation, Ogden SIGC Energy, Inc., a Delaware corporation, be amended to add Article 7 to read in full as follows: 7. The affirmative vote of the holders of all the issued and outstanding shares of common stock entitled to vote shall be necessary to take any of the following corporate actions with respect to this Corporation or Second Imperial Geothermal Company, a California limited partnership ("SIGC"), in which this Corporation is a general partner. (i) any merger, consolidation or sale of all or substantially all the assets of this Corporation or SIGC; (ii) the filing of a voluntary petition in bankruptcy or the commencement of a voluntary case by this Corporation or by this Corporation in its capacity as a general partner of SIGC on behalf of SIGC under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent to the entry of an order for relief in an involuntary case under any such law, or the application by this Corporation or by this Corporation in its capacity as a general partner of SIGC on behalf of SIGC for or consent to the appointment of a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of this Corporation, SIGC or any substantial part of their respective properties, or the taking of any action in contemplation of any of the foregoing or to liquidate, dissolve or wind up this Corporation or SIGC; and 3 (iii) any amendment to this Article of the Certificate of Incorporation. SECOND: That thereafter, pursuant to resolution of its Board of Directors, the amendment was submitted to the shareholders of said corporation, and in accordance with Section 228 of the General Corporation Law of the State of Delaware, the amendment was approved by the necessary number of shares as required by statute. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That written notice was provided those shareholders not consenting in writing, pursuant to the provisions of Section 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said OGDEN SIGC ENERGY, INC. has caused this certificate to be signed by John F. Walter, its president and Sharon G. Province, its Secretary, this 30th day of December, 1994. OGDEN SIGC ENERGY, INC. By: /s/ John F. Walter ------------------------------------------ John F. Walter, President Attest: /s/ Sharon G. Province -------------------------------------- Sharon G. Province, Secretary 4 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN SIGC ENERGY, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN SIGC ENERGY, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: the name of the corporation (hereinafter called the "corporation") is COVANTA SIGC ENERGY, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March __, 2001. /s/ Patricia Collins --------------------------------------------- Name: Patricia Collins Title: Assistant Secretary 5 CERTIFICATE OF AMENDMENT TO CERTIFICATE OF INCORPORATION OF COVANTA SIGC ENERGY, INC. Covanta SIGC Energy, Inc., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), hereby certifies as follows: 1. The name of the Corporation is Covanta SIGC Energy, Inc. The name under which the Corporation was originally incorporated was Ogden SIGC Energy, Inc. The original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on November 9, 1994. 2. On November 21, 2003, the United States Bankruptcy Court for the Southern District of New York entered an order (the "Order") confirming the Heber Debtors' Third Amended Joint Plan of Reorganization Under Chapter 11 of The Bankruptcy Code (Case Nos. 02-40882, 40884-40888 (CB)) (the "Plan"), which Plan provides for the reorganization of the Corporation pursuant to chapter 11 of title 11 of the United States Bankruptcy Code. The Order grants the Corporation the authority to amend the Certificate of Incorporation as provided herein, and, pursuant to Section 303 of the General Corporation Law of Delaware, the Corporation may implement this without further action by its directors or stockholders. 3. Pursuant to the Order, Article 7 of the Certificate of Incorporation is amended by adding the following new sentence after the last sentence of said Article: "Pursuant to 11 U.S.C. 1123, notwithstanding any other provision contained herein to the contrary, the Corporation shall not issue non-voting equity securities." IN WITNESS WHEREOF, the undersigned has duly executed this Amended certificate of Incorporation on this 15th day of December, 2003. /s/ Timothy J. Simpson ------------------------------------------- Name: Timothy J. Simpson Title: Assistance Secretary 6 EX-99.T3A59 52 exhibit_t3a-59.txt Exhibit T3A-59 Inc., Ogden Martin Systems of Monmouth, Inc., Ogden Martin Systems of Oyster Bay, Inc., Ogden Martin Systems of Sharyn, Inc., and Ogden Martin Systems of Snohomish, Inc.: "RESOLVED, that Ogden Martin Systems, Inc. merge, and it hereby does merge into itself said Ogden Martin Systems of Berks, Inc., Ogden Martin Systems of Monmouth, Inc., Ogden Martin Systems of Oyster Bay, Inc., Ogden Martin Systems of Sharyn, Inc., and Ogden Martin Systems of Snohomish, Inc., and assumes all of their obligations; and FURTHER RESOLVED, that the merger shall be effective upon the date of filing with the Secretary of State of Delaware; and FURTHER RESOLVED, that the proper officers of this corporation be and they hereby are directed to make and execute a Certificate of Ownership and Merger setting forth a copy of the resolutions to merge said Ogden Martin Systems of Berks, Inc., Ogden Martin Systems of Monmouth, Inc., Ogden Martin Systems of Oyster Bay, Inc., Ogden Martin Systems of Sharyn, Inc., and Ogden Martin Systems of Snohomish, Inc. and assume their liabilities and obligations, and the date of adoption thereof, and to cause the same to be filed with the Secretary of State and a certified copy Exhibit T3A-59 recorded in the office of the Recorder of Deeds of New Castle County and to do all acts and things whatsoever, whether within or without the State of Delaware, which may be in anywise necessary or proper to effect said merger." FOURTH: Anything herein or elsewhere to the contrary notwithstanding, this merger may be amended or terminated and abandoned by the Board of Directors of Ogden Martin Systems, Inc. at any time prior to the date of filing the merger with the Secretary of State. IN WITNESS WHEREOF, said Ogden Martin Systems, Inc. has caused this Certificate to be signed by Jeffrey R. Horowitz, its Senior Vice President, and attested by Timothy J. Simpson, its Assistant Secretary, this 18th day of March, 1993. OGDEN MARTIN SYSTEMS, INC. By: /s/ Jeffrey R. Horowitz ------------------------- Jeffrey R. Horowitz Senior Vice President ATTEST: /s/ Timothy J. Simpson - ------------------------ Timothy J. Simpson Assistant Secretary Exhibit T3A-59 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN MARTIN SYSTEMS, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on , 19 /s/ Jeffrey R. Horowitz --------------------------- Authorized Officer Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN MARTIN SYSTEMS OF L.A., INC. (a Delaware corporation) INTO OGDEN MARTIN SYSTEMS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Martin Systems, Inc. [hereinafter sometimes referred to as the "Corporation"] is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares [of each class] of the stock of Ogden Martin Systems of L.A., Inc., which is also a business corporation of the State of Delaware. 3. On June 28, 1996, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Martin Systems of L.A., Inc. into the Corporation: RESOLVED that Ogden Martin Systems of L.A., Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Martin Systems of L.A., Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Martin Systems of L.A., Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Martin Systems of L.A., Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will Exhibit T3A-59 cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. Executed on August 6, 1996. By: /s/ Scott G. Mackin ------------------------------ Its President Scott G. Mackin Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN MARTIN SYSTEMS OF MORRIS, INC. (A NEW JERSEY CORPORATION) OGDEN MARTIN SYSTEMS OF HUDSON, INC. (A NEW JERSEY CORPORATION) OGDEN MARTIN SYSTEMS OF FORD HEIGHTS, INC. (AN ILLINOIS CORPORATION) OGDEN MARTIN SYSTEMS OF EASTERN/CENTRAL CONNECTICUT, INC. (A CONNECTICUT CORPORATION) OGDEN MARTIN SYSTEMS OF DAKOTA, INC. (A MINNESOTA CORPORATION) OGDEN MARTIN SYSTEMS OF KNOX, INC. (A TENNESSEE CORPORATION) OGDEN MARTIN SYSTEMS OF RHODE ISLAND, INC. (A RHODE ISLAND CORPORATION) OGDEN MARTIN SYSTEMS OF NORTH CAROLINA, INC. (A NORTH CAROLINA CORPORATION) OGDEN MARTIN SYSTEMS OF OAKLAND, INC. (A MICHIGAN CORPORATION) OGDEN MARTIN SYSTEMS OF SAN DIEGO, INC. (A CALIFORNIA CORPORATION) GREY ACRE DEVELOPMENT CORPORATION (A MASSACHUSETTS CORPORATION) INTO OGDEN MARTIN SYSTEMS, INC. (A DELAWARE CORPORATION) It is hereby certified that: 1. Ogden Martin Systems, Inc., hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Morris, Inc., which is a business corporation of the State of New Jersey. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Hudson, Inc. which is a business corporation of the State of New Jersey. Exhibit T3A-59 The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Ford Heights, Inc., which is a business corporation of the State of Illinois. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Eastern/Central Connecticut, Inc. which is a business corporation of the State of Connecticut. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Dakota, Inc. which is a business corporation of the State of Minnesota. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Knox, Inc. which is a business corporation of the State of Tennessee. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Rhode Island, Inc. which is a business corporation of the State of Rhode Island. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of North Carolina, Inc. which is a business corporation of the State of North Carolina. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Oakland, Inc. which is a business corporation of the State of Michigan. Exhibit T3A-59 The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of San Diego, Inc. which is a business corporation of the State of California. The Corporation is the owner of all the outstanding shares of common stock of Grey Acre Development Corporation, which is a business corporation of the State of Massachusetts. 3. The laws of the jurisdiction and organization of Ogden Martin Systems of Morris, Inc., Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Systems of San Diego, Inc. and Grey Acre Development Corporation permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction. 4. The Corporation hereby merges Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Exhibit T3A-59 Martin Systems of San Diego, Inc. and Grey Acre Development Corporation into the Corporation. 5. The following is a copy of the resolutions adopted on October 8, 1996 by the Board of Directors of the Corporation to merge the said Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Systems of San Diego, Inc. and Grey Acre Development Corporation into the Corporation: RESOLVED that Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc. and Ogden Martin Systems of San Diego, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers, and franchises of Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Exhibit T3A-59 Systems of San Diego, Inc. and Grey Acre Development Corporation be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Systems of San Diego, Inc. and Grey Acre Development Corporation in its name. RESOLVED that this Corporation assume all of the obligations of Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Systems of San Diego, Inc. and Grey Acre Development Corporation. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware, New Jersey, Illinois, Connecticut, Minnesota, Tennessee, Rhode Island, North Carolina, Michigan, California, Massachusetts and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the jurisdiction of organization of Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Exhibit T3A-59 Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Systems of San Diego, Inc. and Grey Acre Development Corporation and of this Corporation and in any other appropriate jurisdiction. Executed on September 26, 1996. OGDEN MARTIN SYSTEMS, INC. By: /s/ Jeffrey R. Horowitz --------------------------------------- Jeffrey R. Horowitz, its Secretary Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN MARTIN SYSTEMS OF SAN BERNARDINO, INC. (a California corporation) INTO OGDEN MARTIN SYSTEMS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Martin Systems, Inc., hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all the outstanding shares of Common stock of Ogden Martin Systems of San Bernardino, Inc., which is a business corporation of the State of California. 3. The laws of the jurisdiction of organization of Ogden Martin Systems of San Bernardino, Inc. permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction. 4. The Corporation hereby merges Ogden Martin Systems of San Bernardino, Inc. into the Corporation. 5. The following is a copy of the resolutions adopted on February 11, 2000 by the Board of Directors of the Corporation: RESOLVED that Ogden Martin Systems of San Bernardino, Inc. be merged into this Corporation, and that all the estate, property, rights, privileges, powers and franchises of Ogden Martin Systems of San Bernardino, Inc. be Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Martin Systems of San Bernardino, Inc. in its name. RESOLVED that this Corporation assumes all of the obligations of Ogden Martin Systems of San Bernardino, Inc. State of Delaware Secretary of State Division of Corporations Filed 09:00 AM 03/21/2000 001152646 - 2006444 Exhibit T3A-59 RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware, by the laws of the State of California, and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the jurisdiction of organization of Ogden Martin Systems of San Bernardino, Inc. and of this Corporation and in any other appropriate jurisdiction. Executed on February 29, 2000 OGDEN MARTIN SYSTEMS, INC. By: /s/ Jeffrey R. Horowitz ------------------------------ Jeffrey R. Horowitz, Secretary Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF OMSC ONE, INC. OMSC TWO, INC. OMSC THREE, INC. OMSC FOUR, INC. (each a Delaware Corporation) INTO OGDEN MARTIN SYSTEMS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Martin Systems, Inc., [hereinafter sometimes referred to as the "Corporation"] is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares [of each class] of the stock of OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Four, Inc., which are also business corporations of the State of Delaware. 3. On May 8, 2000, the Board of Directors of the Corporation adopted the following resolutions to merge OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Four, Inc. into the Corporation: RESOLVED that OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Fours, be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Four, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Four, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Four, Inc. Exhibit T3A-59 RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be upon filing. Executed on May 30, 2000 OGDEN MARTIN SYSTEMS, INC. By: /s/ Jeffrey R. Horowitz ----------------------------------- Jeffrey R. Horowitz, Secretary Exhibit T3A-59 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN MARTIN SYSTEMS, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA SYSTEMS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th of March __, 2001. /s/ Patricia Collins ------------------------------------------ Name: Patricia Collins Title: Asst. Secretary Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntington Resource Recovery Six Corp. (Delaware corporations) INTO Covanta Systems, Inc. (a Delaware corporation) It is hereby certified that: 1. Covanta Systems, Inc., hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of each class of the stock of Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Resource Recovery Six Corp., which is also a business corporation of the State of Delaware. 3. On April 30, 2001, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Resource Recovery Six Corp., into the Corporation: RESOLVED that Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Exhibit T3A-59 Resource Recovery Six Corp., be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Resource Recovery Six Corp., be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Resource Recovery Six Corp. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Resource Recovery Six Corp. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware arid within any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be upon filing. Exhibit T3A-59 Executed on May 10, 2001 Covanta Systems, Inc. By: /s/ Jeffrey R. Horowitz ------------------------------------- Jeffrey R. Horowitz, Secretary Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN MARTIN SYSTEMS OF MERCER, INC. (a New Jersey corporation) into COVANTA SYSTEMS, INC. (a Delaware corporation) It is hereby certified that: 1. Covanta Systems, Inc. hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of the stock of Ogden Martin Systems of Mercer, Inc., which is a business corporation of the State of New Jersey. 3. The laws of the jurisdiction of organization of New Jersey permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction. 4. The Corporation hereby merges Ogden Martin Systems of Mercer, Inc. into the Corporation. 5. The following is a copy of the resolutions adopted by the Board of Directors of the Corporation to merge the said Ogden Martin Systems of Mercer, Inc. into the Corporation on April 30, 2001: RESOLVED that Ogden Martin Systems of Mercer, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers, and franchises of Ogden Martin Systems of Mercer, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Martin Systems of Mercer, Inc. in its name. RESOLVED that this Corporation assumes all of the obligations of Ogden Martin Systems of Mercer, Inc. Exhibit T3A-59 RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware, by the laws of the State of New Jersey, and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the jurisdiction of organization of Ogden Martin Systems of Mercer, Inc. and of this Corporation and in any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions shall be upon filing, and that, insofar as the General Corporation Law of the State of Delaware shall govern the same, said time shall be the effective merger time. Executed on May 23, 2001 OVANTA SYSTEMS, INC. By: /s/ Bruce W. Stone --------------------------------- Bruce W. Stone Executive Vice President Exhibit T3A-59. Delaware PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA SYSTEMS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE ELEVENTH DAY OF APRIL, A.D. 1983, AT 12 O'CLOCK P.M. CERTIFICATE OF OWNERSHIP, FILED THE FIRST DAY OF FEBRUARY, A.D. 1990, AT 10 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE NINETEENTH DAY OF APRIL, A.D. 1993, AT 4:30 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-SIXTH DAY OF AUGUST, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE FIFTEENTH DAY OF OCTOBER, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-SEVENTH DAY OF MARCH, A.D. 2000, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE FIFTH DAY OF JUNE, A. D. /s/ Harriet Smith Windsor ------------------------------------------------ Harriet Smith Windsor, Secretary of State SEAL 2006444 8100H AUTHENTICATION: 2951614 040135526 DATE: 02-25-04 1 Exhibit T3A-59. Delaware PAGE 2 The First State 2000, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN MARTIN SYSTEMS, INC." TO "COVANTA SYSTEMS, INC.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-SECOND DAY OF MAY, A.D. 2001, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-NINTH DAY OF MAY, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ----------------------------------------- Harriet Smith Windsor, Secretary of State SEAL 2006444 8100H AUTHENTICATION: 2951614 040135526 DATE: 02-25-04 Exhibit T3A-59. CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS, INC. 1. The name of the corporation is: OGDEN MARTIN SYSTEMS, INC. 2. The address of its registered office in the State of Delaware is 100 West Tenth Street in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars ($100.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by ballot. 6. The name and mailing address of the incorporator is: L.M. Custis 100 West Tenth Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stared are true, and accordingly have hereunto set my hand this 11th day of April, 1983. /s/ L.M. Custis -------------------------------- L.M. Custis Exhibit T3A-59. CERTIFICATE OF OWNERSHIP AND MERGER MERGING OGDEN MARTIN SYSTEMS OF BERKS, INC., OGDEN MARTIN SYSTEMS OF MONMOUTH, INC., OGDEN MARTIN SYSTEMS OF OYSTER BAY, INC., OGDEN MARTIN SYSTEMS OF SHARYN, INC., AND OGDEN MARTIN SYSTEMS OF SNOHOMISH, INC. INTO OGDEN MARTIN SYSTEMS, INC. * * * * * OGDEN MARTIN SYSTEMS, INC., a corporation organized and existing under the laws of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That this corporation was incorporated on the 11th day of April, 1983, pursuant to the General Corporation Law of the State of Delaware. SECOND: That this corporation owns all of the outstanding shares (of each class) of the stock of Ogden Martin Systems of Berks, Inc., a corporation incorporated on the 1st day of October, 1985, pursuant to the Business Corporation Law of the State of Pennsylvania; That this corporation owns all of the outstanding shares (of each class) of the stock of Ogden Martin Systems of Monmouth, Inc., a corporation incorporated on the 8th day of Exhibit T3A-59. August, 1985, pursuant to the Business Corporation Act of the State of New Jersey; That this Corporation owns all of the outstanding shares (of each class) of the stock of Ogden Martin Systems of Oyster Bay, Inc., a corporation incorporated on the 19th day of November, 1986, pursuant to the Business Corporation Law of the State of New York; That this corporation owns all of the outstanding shares (of each class) of the stock of Ogden Martin Systems of Sharyn, Inc., a corporation incorporated on the 11th day of July, 1989, pursuant to the General Corporation Law of the State of Delaware; That this corporation owns all of the outstanding shares (of each class) of the stock of Ogden Martin Systems of Snohomish, Inc., a corporation incorporated on the 19th day of December, 1986, pursuant to the Business Corporation Act of the State of Washington; THIRD: That this corporation, by the following resolutions of its Board of Directors, by the unanimous written consent of its members, filed with the minutes of the Board on the 16th day of March, 1993, determined to and did merge into itself said Ogden Martin Systems of Berks, Inc., Ogden Martin Systems of Monmouth, Inc., Ogden Martin Systems of Oyster Bay, Exhibit T3A-59 Inc., Ogden Martin Systems of Monmouth, Inc., Ogden Martin Systems of Oyster Bay, Inc., Ogden Martin Systems of Sharyn, Inc., and Ogden Martin Systems of Snohomish, Inc.: "RESOLVED, that Ogden Martin Systems, Inc. merge, and it hereby does merge into itself said Ogden Martin Systems of Berks, Inc., Ogden Martin Systems of Monmouth, Inc., Ogden Martin Systems of Oyster Bay, Inc., Ogden Martin Systems of Sharyn, Inc., and Ogden Martin Systems of Snohomish, Inc., and assumes all of their obligations; and FURTHER RESOLVED, that the merger shall be effective upon the date of filing with the Secretary of State of Delaware; and FURTHER RESOLVED, that the proper officers of this corporation be and they hereby are directed to make and execute a Certificate of Ownership and Merger setting forth a copy of the resolutions to merge said Ogden Martin Systems of Berks, Inc., Ogden Martin Systems of Monmouth, Inc., Ogden Martin Systems of Oyster Bay, Inc., Ogden Martin Systems of Sharyn, Inc., and Ogden Martin Systems of Snohomish, Inc. and assume their liabilities and obligations, and the date of adoption thereof, and to cause the same to be filed with the Secretary of State and a certified copy Exhibit T3A-59 recorded in the office of the Recorder of Deeds of New Castle County and to do all acts and things whatsoever, whether within or without the State of Delaware, which may be in anywise necessary or proper to effect said merger." FOURTH: Anything herein or elsewhere to the contrary notwithstanding, this merger may be amended or terminated and abandoned by the Board of Directors of Ogden Martin Systems, Inc. at any time prior to the date of filing the merger with the Secretary of State. IN WITNESS WHEREOF, said Ogden Martin Systems, Inc. has caused this Certificate to be signed by Jeffrey R. Horowitz, its Senior Vice President, and attested by Timothy J. Simpson, its Assistant Secretary, this 18th day of March, 1993. OGDEN MARTIN SYSTEMS, INC. By: /s/ Jeffrey R. Horowitz ------------------------- Jeffrey R. Horowitz Senior Vice President ATTEST: /s/ Timothy J. Simpson - ------------------------ Timothy J. Simpson Assistant Secretary Exhibit T3A-59 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN MARTIN SYSTEMS, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on , 19 /s/ Jeffrey R. Horowitz --------------------------- Authorized Officer Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN MARTIN SYSTEMS OF L.A., INC. (a Delaware corporation) INTO OGDEN MARTIN SYSTEMS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Martin Systems, Inc. [hereinafter sometimes referred to as the "Corporation"] is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares [of each class] of the stock of Ogden Martin Systems of L.A., Inc., which is also a business corporation of the State of Delaware. 3. On June 28, 1996, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Martin Systems of L.A., Inc. into the Corporation: RESOLVED that Ogden Martin Systems of L.A., Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Martin Systems of L.A., Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Martin Systems of L.A., Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Martin Systems of L.A., Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will Exhibit T3A-59 cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. Executed on August 6, 1996. By: /s/ Scott G. Mackin ------------------------------ Its President Scott G. Mackin Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN MARTIN SYSTEMS OF MORRIS, INC. (A NEW JERSEY CORPORATION) OGDEN MARTIN SYSTEMS OF HUDSON, INC. (A NEW JERSEY CORPORATION) OGDEN MARTIN SYSTEMS OF FORD HEIGHTS, INC. (AN ILLINOIS CORPORATION) OGDEN MARTIN SYSTEMS OF EASTERN/CENTRAL CONNECTICUT, INC. (A CONNECTICUT CORPORATION) OGDEN MARTIN SYSTEMS OF DAKOTA, INC. (A MINNESOTA CORPORATION) OGDEN MARTIN SYSTEMS OF KNOX, INC. (A TENNESSEE CORPORATION) OGDEN MARTIN SYSTEMS OF RHODE ISLAND, INC. (A RHODE ISLAND CORPORATION) OGDEN MARTIN SYSTEMS OF NORTH CAROLINA, INC. (A NORTH CAROLINA CORPORATION) OGDEN MARTIN SYSTEMS OF OAKLAND, INC. (A MICHIGAN CORPORATION) OGDEN MARTIN SYSTEMS OF SAN DIEGO, INC. (A CALIFORNIA CORPORATION) GREY ACRE DEVELOPMENT CORPORATION (A MASSACHUSETTS CORPORATION) INTO OGDEN MARTIN SYSTEMS, INC. (A DELAWARE CORPORATION) It is hereby certified that: 1. Ogden Martin Systems, Inc., hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Morris, Inc., which is a business corporation of the State of New Jersey. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Hudson, Inc. which is a business corporation of the State of New Jersey. Exhibit T3A-59 The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Ford Heights, Inc., which is a business corporation of the State of Illinois. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Eastern/Central Connecticut, Inc. which is a business corporation of the State of Connecticut. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Dakota, Inc. which is a business corporation of the State of Minnesota. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Knox, Inc. which is a business corporation of the State of Tennessee. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Rhode Island, Inc. which is a business corporation of the State of Rhode Island. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of North Carolina, Inc. which is a business corporation of the State of North Carolina. The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of Oakland, Inc. which is a business corporation of the State of Michigan. Exhibit T3A-59 The Corporation is the owner of all the outstanding shares of common stock of Ogden Martin Systems of San Diego, Inc. which is a business corporation of the State of California. The Corporation is the owner of all the outstanding shares of common stock of Grey Acre Development Corporation, which is a business corporation of the State of Massachusetts. 3. The laws of the jurisdiction and organization of Ogden Martin Systems of Morris, Inc., Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Systems of San Diego, Inc. and Grey Acre Development Corporation permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction. 4. The Corporation hereby merges Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Exhibit T3A-59 Martin Systems of San Diego, Inc. and Grey Acre Development Corporation into the Corporation. 5. The following is a copy of the resolutions adopted on October 8, 1996 by the Board of Directors of the Corporation to merge the said Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Systems of San Diego, Inc. and Grey Acre Development Corporation into the Corporation: RESOLVED that Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc. and Ogden Martin Systems of San Diego, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers, and franchises of Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Exhibit T3A-59 Systems of San Diego, Inc. and Grey Acre Development Corporation be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Systems of San Diego, Inc. and Grey Acre Development Corporation in its name. RESOLVED that this Corporation assume all of the obligations of Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Systems of San Diego, Inc. and Grey Acre Development Corporation. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware, New Jersey, Illinois, Connecticut, Minnesota, Tennessee, Rhode Island, North Carolina, Michigan, California, Massachusetts and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the jurisdiction of organization of Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Hudson, Inc., Ogden Martin Systems of Ford Heights, Inc., Ogden Martin Systems of Eastern/Central Connecticut, Inc., Ogden Martin Systems of Dakota, Inc., Exhibit T3A-59 Ogden Martin Systems of Knox, Inc., Ogden Martin Systems of Rhode Island, Inc., Ogden Martin Systems of North Carolina, Inc., Ogden Martin Systems of Oakland, Inc., Ogden Martin Systems of San Diego, Inc. and Grey Acre Development Corporation and of this Corporation and in any other appropriate jurisdiction. Executed on September 26, 1996. OGDEN MARTIN SYSTEMS, INC. By: /s/ Jeffrey R. Horowitz --------------------------------------- Jeffrey R. Horowitz, its Secretary Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN MARTIN SYSTEMS OF SAN BERNARDINO, INC. (a California corporation) INTO OGDEN MARTIN SYSTEMS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Martin Systems, Inc., hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all the outstanding shares of Common stock of Ogden Martin Systems of San Bernardino, Inc., which is a business corporation of the State of California. 3. The laws of the jurisdiction of organization of Ogden Martin Systems of San Bernardino, Inc. permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction. 4. The Corporation hereby merges Ogden Martin Systems of San Bernardino, Inc. into the Corporation. 5. The following is a copy of the resolutions adopted on February 11, 2000 by the Board of Directors of the Corporation: RESOLVED that Ogden Martin Systems of San Bernardino, Inc. be merged into this Corporation, and that all the estate, property, rights, privileges, powers and franchises of Ogden Martin Systems of San Bernardino, Inc. be Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Martin Systems of San Bernardino, Inc. in its name. RESOLVED that this Corporation assumes all of the obligations of Ogden Martin Systems of San Bernardino, Inc. State of Delaware Secretary of State Division of Corporations Filed 09:00 AM 03/21/2000 001152646 - 2006444 Exhibit T3A-59 RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware, by the laws of the State of California, and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the jurisdiction of organization of Ogden Martin Systems of San Bernardino, Inc. and of this Corporation and in any other appropriate jurisdiction. Executed on February 29, 2000 OGDEN MARTIN SYSTEMS, INC. By: /s/ Jeffrey R. Horowitz ------------------------------ Jeffrey R. Horowitz, Secretary Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF OMSC ONE, INC. OMSC TWO, INC. OMSC THREE, INC. OMSC FOUR, INC. (each a Delaware Corporation) INTO OGDEN MARTIN SYSTEMS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Martin Systems, Inc., [hereinafter sometimes referred to as the "Corporation"] is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares [of each class] of the stock of OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Four, Inc., which are also business corporations of the State of Delaware. 3. On May 8, 2000, the Board of Directors of the Corporation adopted the following resolutions to merge OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Four, Inc. into the Corporation: RESOLVED that OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Fours, be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Four, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Four, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of OMSC One, Inc., OMSC Two, Inc., OMSC Three, Inc. and OMSC Four, Inc. Exhibit T3A-59 RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be upon filing. Executed on May 30, 2000 OGDEN MARTIN SYSTEMS, INC. By: /s/ Jeffrey R. Horowitz ----------------------------------- Jeffrey R. Horowitz, Secretary Exhibit T3A-59 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN MARTIN SYSTEMS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN MARTIN SYSTEMS, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA SYSTEMS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th of March __, 2001. /s/ Patricia Collins ------------------------------------------ Name: Patricia Collins Title: Asst. Secretary Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntington Resource Recovery Six Corp. (Delaware corporations) INTO Covanta Systems, Inc. (a Delaware corporation) It is hereby certified that: 1. Covanta Systems, Inc., hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of each class of the stock of Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Resource Recovery Six Corp., which is also a business corporation of the State of Delaware. 3. On April 30, 2001, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Resource Recovery Six Corp., into the Corporation: RESOLVED that Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Exhibit T3A-59 Resource Recovery Six Corp., be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Resource Recovery Six Corp., be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Resource Recovery Six Corp. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Martin Systems of Huntington Resource Recovery Two Corp., Ogden Martin Systems of Huntington Resource Recovery Three Corp., Ogden Martin Systems of Huntington Resource Recovery Four Corp., Ogden Martin Systems of Huntington Resource Recovery Five Corp., Ogden Martin Systems of Huntington Resource Recovery Six Corp. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware arid within any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be upon filing. Exhibit T3A-59 Executed on May 10, 2001 Covanta Systems, Inc. By: /s/ Jeffrey R. Horowitz ------------------------------------- Jeffrey R. Horowitz, Secretary Exhibit T3A-59 CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN MARTIN SYSTEMS OF MERCER, INC. (a New Jersey corporation) into COVANTA SYSTEMS, INC. (a Delaware corporation) It is hereby certified that: 1. Covanta Systems, Inc. hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of the stock of Ogden Martin Systems of Mercer, Inc., which is a business corporation of the State of New Jersey. 3. The laws of the jurisdiction of organization of New Jersey permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction. 4. The Corporation hereby merges Ogden Martin Systems of Mercer, Inc. into the Corporation. 5. The following is a copy of the resolutions adopted by the Board of Directors of the Corporation to merge the said Ogden Martin Systems of Mercer, Inc. into the Corporation on April 30, 2001: RESOLVED that Ogden Martin Systems of Mercer, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers, and franchises of Ogden Martin Systems of Mercer, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Martin Systems of Mercer, Inc. in its name. RESOLVED that this Corporation assumes all of the obligations of Ogden Martin Systems of Mercer, Inc. Exhibit T3A-59 RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware, by the laws of the State of New Jersey, and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the jurisdiction of organization of Ogden Martin Systems of Mercer, Inc. and of this Corporation and in any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions shall be upon filing, and that, insofar as the General Corporation Law of the State of Delaware shall govern the same, said time shall be the effective merger time. Executed on May 23, 2001 OVANTA SYSTEMS, INC. By: /s/ Bruce W. Stone --------------------------------- Bruce W. Stone Executive Vice President EX-99.T3A60 53 exhibit_t3a-60.txt Exhibit T3A-60. STATEMENT OF INCORPORATORS IN LIEU OF ORGANIZATION MEETING OF OGDEN WALLINGFORD ASSOCIATES, INC. The Certificate of Incorporation of this corporation having been filed in the office of the Secretary of State, the undersigned, being all of the incorporators named in said certificate, do hereby state that the following actions were taken on this day for the purpose of organizing this corporation: 1. By-laws for the regulation of the affairs of the corporation were adopted by the undersigned incorporators and were ordered inserted in the minute book immediately following the copy of the Certificate of Incorporation and before this instrument. 2. The following persons were elected as directors to hold office until the first annual meeting of stockholders or until their respective successors are elected and qualified: RALPH E. ABLON, ROBERT M. DiGIA, SCOTT G. MACKIN, MARIA P. MONET and DAVID L. SOKOL. 3. The Board of Directors was authorized, in its discretion, to issue the shares of the capital stock of this corporation to the full amount or number of shares authorized by the Certificate of Incorporation, in such amounts and for such considerations as from time to time shall be determined by the Board of Directors and as may be permitted by law. Dated, October 6, 1988. /s/BARBARA A. DAWSON -------------------------------- Barbara A. Dawson, Incorporator /s/JOAN BRUNSON -------------------------------- Joan Brunson, Incorporator /s/GIOVANNA DeCANDIA -------------------------------- Giovanna DeCandia, Incorporator Exhibit T3A-60. SECRETARY OF THE STATE 30 TRINITY STREET P.O. BOX 150470 HARTFORD, CT 06115-0470 MARCH 15,2001 INTERCOUNTY CLEARANCE CORPORATION 57 PRATT ST., SUITE 410 HARTFORD, CT 06103 RE: Acceptance of Business Filing This letter is to confirm the acceptance of a filing for the following business: OGDEN WALLINGFORD ASSOCIATES, INC. Work Order Number: 2001045220-001 Business Filing Number: 0002227064 Type of Request: CERTIFICATE OF AMENDMENT File Date/Time: MAR 15 2001 09:12 AM Effective Date/Time: MAR 15 2001 09:12 AM Work Order Payment Received: 75.00 Payment Received: Account Balance: Customer Id: 000 Business Id: 0222936 If applicable for this type of request, a summary of the business information we have on record is enclosed. If you would like copies of this filing you must complete a Request for Corporate Copies and submit it with the appropriate fee. MARK MATTIOLI Commercial Recording Division 860-509-6003 BUSINESS FILING REPORT WORK ORDER NUMBER:2001045220-001 BUSINESS FILINGNUMBER: 0002227064 BUSINESS NAME: CONVANTA WALLINGFORD ASSOCIATES, INC. BUSINESS LOCATION: NONE MAILING ADDRESS: PRENTICE HALL CORPORATION SYSTEM, INC. 30 HIGH STREET HARTFORD,CT 06103 * * END OF REPORT * * CERTIFICATE OF AMENDMENT STOCK CORPORATION Office of the Secretary of the State 30 Trinity Street / P.O. Box 150470 / Hartford, CT 06115-0470 /Rev. 12/1999 SPACE FOR OFFICE USE ONLY FILING #0002227064 PG 01 OF 02 VOL B-00397 FILED 03/15/2001 09:12 AM PAGE 00698 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE 1. NAME OF CORPORATION: Ogden Wallingford Associates, Inc. 2. THE CERTIFICATE OF INCORPORATION IS (CHECK A., B. OR C.): [X] A. AMENDED. ______ B. AMENDED AND RESTATED. ______ C. RESTATED. 3. TEXT OF EACH AMENDMENT / RESTATEMENT: Article First is amended to read: "First: The name of the corporation is Covanta Wallingford Associates, Inc." (PLEASE REFERENCE AN 8 1/2 X 11 ATTACHMENT IF ADDITIONAL SPACE IS NEEDED) SPACE FOR OFFICE USE ONLY FILING *0002227064 PG 01 OF 02 VOL B-00397 FILED 03/15/2001 09:12 AN PAGE 00698 - SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE 4. VOTE INFORMATION (check A., B. or C.): [X] A. THE RESOLUTION WAS APPROVED BY SHAREHOLDERS AS FOLLOWS: (SET FORTH ALL VOTING INFORMATION REQUIRED BY CONN. GEN. STAT. SECTION 33-800 AS AMENDED IN THE SPACE PROVIDED BELOW) _______ B THE AMENDMENT WAS ADOPTED BY THE BOARD OF DIRECTORS WITHOUT SHAREHOLDER ACTION. NO SHAREHOLDER VOTE WAS REQUIRED FOR ADOPTION. _______ C. THE AMENDMENT WAS ADOPTED BY THE INCORPORATORS WITHOUT SHAREHOLDER ACTION. NO SHAREHOLDER VOTE WAS REQUIRED FOR ADOPTION. 5. EXECUTION: Dated this 12th day of March, 20, 2004 Patricia Collins Asst. Secretary /s/ Patricia Collins - ------------------------------- --------------------- -------------------- PRINT OR TYPE NAME OF SIGNATORY CAPACITY OF SIGNATORY SIGNATURE EX-99.T3A61 54 exhibit_t3a-61.txt Exhibit T3A-61. Delaware PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA WASTE TO ENERGY, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE EIGHTEENTH DAY OF DECEMBER, A.D. 1995, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN WASTE TO ENERGY, INC." TO "COVANTA WASTE TO ENERGY, INC.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ------------------------------------ Harriet Smith Windsor, Secretary of State 2572858 8100H AUTHENTICATION: 2951823 040135914 DATE: 02-25-04 1 Exhibit T3A-61. CERTIFICATE OF INCORPORATION OF OGDEN WASTE TO ENERGY, INC. The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as The "General Corporation Law of the State of Delaware"), hereby certifies that: FIRST: The name of the corporation (hereinafter called the "corporation") is OGDEN WASTE TO ENERGY, INC. SECOND: The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington 19805, County of New Castle; and the name of the registered agent of the corporation in the State of Delaware at such address is The Prentice-Hall Corporation System, Inc. THIRD The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is one hundred. The par value of each of such shares is one dollar. All such shares are of one class and are shares of Common Stock. FIFTH: The name and the mailing address of the incorporator are as follows:
NAME MAILING ADDRESS ---- --------------- Merryl Wiener 375 Hudson Street, 11th Floor New York, New York 10014
SIXTH: The corporation is to have perpetual -1- Exhibit T3A-61. existence. SEVENTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation, and regulation of the powers of the corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning, to wit, the total number of directors which the corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other Bylaws of the corporation have been adopted, amended, or repealed, as the -2- Exhibit T3A-61. case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the corporation may be exercised by the Board of Directors of the corporation; provided, however, that any provision for the classification of directors of the corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial Bylaw or in a Bylaw adopted by the stockholders entitled to vote of the corporation unless provisions for such classification shall be act forth in this certificate of incorporation. 3. Whenever the corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of Section 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may he amended and supplemented. TENTH: The corporation shall, to the fullest extent permitted by the provisions of Section 145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom It shall have power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, -3- Exhibit T3A-61. agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person. ELEVENTH: From time to time any of the provisions of this certificate of incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the corporation by this certificate of incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on December 15, 1995. /s/ ---------------------------- Incorporator -4- CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN WASTE TO ENERGY, INC. It is certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN WASTE TO ENERGY, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA WASTE TO ENERGY, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ___, 2001. /s/ Patricia Collins ----------------------------- Name: Patricia Collins Title: Asst. Secretary EX-99.T3A62 55 exhibit_t3a-62.txt Exhibit T3a-62 Delaware The First State
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA WATER HOLDINGS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE SEVENTEENTH DAY OF MAY, A.D. 1994, AT 4 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE NINETEENTH DAY OF AUGUST, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE FIFTEENTH DAY OF OCTOBER, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN WATER HOLDINGS, INC." TO "COVANTA WATER HOLDINGS, INC.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION.
/s/ Harriet Smith Windsor Harriet Smith Windsor, Secretary of State 2403545 8100H AUTHENTICATION: 2951831 040135930 DATE: 02-25-04 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED: 04:00 PM 05/17/1994 944088182 -- 2403545 CERTIFICATE OF INCORPORATION OF OGDEN WATER HOLDINGS, INC. * * * * * 1. The name of the corporation is OGDEN WATER HOLDINGS, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is 100 and the par value of each of such shares is $1.00. 5. The name and mailing address of each incorporator is as follows: NAME MAILING ADDRESS K.A. Widdoes Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 6. The corporation is to have perpetual existence. 7. The corporation reserves the right to amend, alter, change of repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is our act and deed and the facts herein stated are true, and accordingly have hereunto set our hands this 17th day of May, 1994. /s/ K.A. Widdoes STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM O2/06/1996 960034694 -- 2403545 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN WATER HOLDINGS, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on January 15, 1996 /s/ Authorized Officer STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 08/19/1996 960241381 - 2403545 CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN WATER SYSTEMS OF JERUSALEM, INC. (a Delaware corporation) INTO OGDEN WATER HOLDINGS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Water Holdings, Inc. hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of each class of the stock of Ogden Water Systems of Jerusalem, Inc., which is also a business corporation of the State of Delaware. 3. On June 28, 1996, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Water Systems of Jerusalem, Inc. into the Corporation: RESOLVED that Ogden Water Systems of Jerusalem, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Water Systems of Jerusalem, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Water Systems of Jerusalem, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Water Systems of Jerusalem, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. Executed on August 6, 1996. By: /s/ Scott C. Mackin Its President Scott C. Mackin STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 10/15/1996 960299222 - 2403545 CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN WATER SYSTEMS OF LEE COUNTY, INC. (a Florida corporation) INTO OGDEN WATER HOLDINGS, INC. (a Delaware corporation) It is hereby certified that: 1. Ogden Water Holdings, Inc., hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all the outstanding shares of common stock of Ogden Water Systems of Lee County, Inc., which is a business corporation of the State of Florida. 3. The laws of the jurisdiction and organization of Ogden Water Systems of Lee County, Inc. permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction. 4. The Corporation hereby merges Ogden Water Systems of Lee County, Inc. into the Corporation. 5. The following is a copy of the resolutions adopted on October 8, 1996 by the Board of Directors of the Corporation to merge the said Ogden Water Systems of Lee County, Inc. into the Corporation: RESOLVED that Ogden Water Systems of Lee County, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers, and franchises of Ogden Water Systems of Lee County, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Water Systems of Lee County, Inc. in its name. RESOLVED that this Corporation assume all of the obligations of Ogden Water Systems of Lee County, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware, Florida and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the jurisdiction of organization of Ogden Water Systems of Lee County, Inc. and of this Corporation and in any other appropriate jurisdiction. Executed on September 26, 1996. OGDEN WATER HOLDINGS, INC. By: /s/ Jeffrey R. Horowitz Jeffrey R. Horowitz, its Secretary STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/2001 010126579 - 2403545 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN WATER HOLDINGS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN WATER HOLDINGS, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA WATER HOLDINGS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th of March __ 2001. /s/ Patricia Collins Name: Patricia Collins Title: Asst. Secretary EX-99.T3A64 56 exhibit_t3a-64.txt Exhibit T3A-64. DELAWARE The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA WATER TREATMENT SERVICES, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE NINETEENTH DAY OF JANUARY, A.D. 1995, AT 10:30 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN WATER TREATMENT SUPPORT SERVICES, INC." TO "COVANTA WATER TREATMENT SERVICES, INC." FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. 1 Exhibit T3A-64. CERTIFICATE OF INCORPORATION OF OGDEN WATER TREATMENT SUPPORT SERVICES, INC. The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the law of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "General Corporation Law of the State of Delaware"), hereby certifies that: FIRST: The names of the corporation (hereinafter called the "corporation") is Ogden Water Treatment Support Services Inc. SECOND: the address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 32 Loockerman Square, Suite L-100, City of Dover, County of Kent; and the name of the registered agent of the corporation in the State of Delaware at such address is The Prentice-Mall Corporation System, Inc. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is one hundred (100). The par value of each of such shares is One Dollar ($1.00). All such shares are of one class and are shares of Common Stock. Each outstanding share of which, will be entitled to one vote. FIFTH: The name and the mailing address of the incorporator are as follows:
NAME MAILING ADDRESS ---- --------------- J. L. Effinger Two Pennsylvania Plaza New York, New York 10121
2 SIXTH: The corporation is to have perpetual existence. SEVENTH: For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation, and regulation of the powers of the corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning, to wit, the total number of directors which the corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. The initial Board of Directors shall consist of four members. The names and mailing addresses of the initial Board of Directors are as follows:
NAME MAILING ADDRESS ---- --------------- R. Richard Ablon Two Pennsylvania Plaza New York, NY 10121 Peter Allen Two Pennsylvania Plaza New York, NY 10121 C. G. Caras Two Pennsylvania Plaza New York, NY 10121 Robert DiGia Two Pennsylvania Plaza New York, NY 10121
3. After the original or other Bylaws of the corporation have been adopted, amended, or repealed as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the Bylaws of the corporation may be exercised by the Board of Directors of the corporation. 3 EIGHTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented. NINTH: The corporation shall, to the fullest extent permitted by the provisions of Section 145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person. TENTH: From time to time any of the provisions of this certificate of incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the corporation by this certificate of incorporation are granted subject to the provisions of this Article TENTH. Signed on January 19, 1994 /s/ J.J. Effinger ------------------------------------- Incorporator 4 Exhibit T3A-64. CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN WATER TREATMENT SUPPORT SERVICES, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN WATER TREATMENT SUPPORT SERVICES, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA WATER TREATMENT SERVICES, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this ______ day of March _____, 2001. /s/ Patricia Collins ------------------------------------- Name: Patricia Collins Title: Asst. Secretary 5 EX-99.T3A65 57 exhibit_t3a-65.txt Exhibit T3A-65. State of New York } ss: Department of State } I hereby certify that the annexed copy has been compared with the original document filed by the Department of State and that the same is a true copy of said original. Witness my hand and seal of the Department of State on February 25, 2004 /s/ [illegible] --------------------- Secretary of State Exhibit T3A-65. CERTIFICATE OF INCORPORATION OF DSS ENVIRONMENTAL, INC. Under Section 402 of the Business Corporation Law The undersigned, being a natural person over eighteen years of age, for the purpose of forming a corporation under Section 402 of the Business Corporation Law, affirms the information set forth in this Certificate under the penalties of perjury: FIRST: The name of the corporation is: DSS Environmental, Inc. SECOND: The purposes for which this corporation is formed are to engage in any lawful acts or activities for which corporations may be organized under the Business Corporation Law of the State of New York, provided that the corporation is not formed to engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body without such consent or approval first being obtained. THIRD: The office of the corporation shall be located in Delaware County, New York. FOURTH: The aggregate number of shares which the corporation shall have authority to issue is 20 preferred shares with voting rights and 100 common shares without voting rights, all of which shall be without par value. FIFTH: The Secretary of State of the State of New York is designated as the agent of the corporation upon whom process against it may be served. The post office address to which the Secretary of State shall mail a copy of any process served against the corporation is 21 Lakeshore Drive, Constantia, New York 13044. SIXTH: Directors of the corporation shall not be personally liable to the corporation or its shareholders for monetary damages because of their breach of duty as directors unless such liability is based upon a judgment or other final adjudication adverse to the director which establishes (i) that the director's acts or omissions were in bad faith or involved intentional misconduct or a knowing violation of law, (ii) that the director personally gained in fact a financial profit or other advantage to which the director was not legally entitled, or (iii) that the director's acts violated Section 719 of the New York Business Corporation Law. If the New York Business Corporation Law is amended to authorize the further elimination or limitation of the liability of directors, the liability of a director of the corporation, in addition to the limitation on personal liability established by this Certificate shall be further Exhibit T3A-65. State of New York } ss: Department of State } I hereby certify that the annexed copy has been compared with the original document filed by the Department of State and that the same is a true copy of said original. Witness my hand and seal of the Department of State on February 25, 2004 /s/ [illegible] ------------------------- Secretary of State CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF DSS ENVIRONMENTAL, INC. UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW The undersigned, being the Secretary of DSS ENVIRONMENTAL, INC. (the "Corporation"), hereby certifies: 1. The name of the Corporation is DSS ENVIRONMENTAL, INC. 2. The Certificate of Incorporation was filed by the Department of State on December 17, 1996. 3. The Certificate of Incorporation, as now in full force and effect, is hereby amended to effect the following changes as authorized by Section 801 of the Business Corporation Law: (a) To change the aggregate number of shares which the Corporation shall have authority to issue from 20 preferred shares with voting rights and 100 common shares without voting rights, all of which are without par value to 20 preferred shares with voting rights which shall be without par value and 25,000,000 common shares with voting rights which shall have a par value of $0.00001 per share. There shall be no change in the 20 issued shares of preferred stock with voting rights which are without par value. The 10 issued shares of common stock without voting rights which are without par value, shall be changed into 10 shares of common stock with voting rights which shall have a par value of $0.00001 per share at a rate of 1 for 1. The eighty (80) unissued shares of common stock without voting rights which are without par value, shall be changed into 24,999,990 shares of common stock with voting rights which shall have a par value of $0.00001 per share at a rate of 1 for 312,499.875. The Paragraph designated "FOURTH" in the Certificate of Incorporation is hereby amended to read in its entirety as follows: FOURTH: The aggregate number of shares which the Corporation shall have authority to issue is 20 preferred shares with voting rights which shall be without par value and 25,000,000 common shares with voting rights which shall have a par value of $0.00001 per share 4. This Amendment to the Certificate of Incorporation was authorized by a vote of the Board of Directors followed by a vote of a majority of the holders of all the outstanding shares entitled to vote at a special meeting of the shareholders held on the 24th day of September 1997. IN WITNESS WHEREOF, I have signed this Certificate of Amendment this 28th day of June, 1999. /s/ William M. Buchan ------------------------------ William M. Buchan, Secretary 2 EX-99.T3A66 58 exhibit_t3a-66.txt Exhibit T3A-66. Delaware PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "ERC ENERGY II, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-FIRST DAY OF APRIL, A.D. 1999, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ------------------------------ Harriet Smith Windsor, Secretary of State 3032718 8100H AUTHENTICATION: 2951852 040135949 DATE: 02-25-04 CERTIFICATE OF INCORPORATION OF ERC Energy II, Inc. The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "General Corporation Law of the State of Delaware"), hereby certifies that: FIRST: The name of the corporation (hereinafter called the "corporation") is ERC Energy II, Inc. SECOND: The address, including street, number, city, end county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington, Delaware, County of New Castle, 19805; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100). The par value of each of such shares is One Dollar and No Cents ($1.00). All such shares are of one class and are shares of Common Stock. Each outstanding share of which, will be entitled to one vote. FIFTH: The name and the mailing address of the Incorporator are as follows: NAME MAILING ADDRESS Theresa A. McCullough 40 Lane Road Fairfield, New Jersey 07007 SIXTH: The corporation is to have perpetual existence. Exhibit T3A-66. SEVENTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented. EIGHTH: From time to time any of the provisions of this certificate of Incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the corporation by this certificate of incorporation are granted subject to the provisions of this Article Eighth. Signed on April 21, 1999 /s/ Theresa A. McCullough ------------------------------ Theresa A. McCullough, Incorporator EX-99.T3A67 59 exhibit_t3a-67.txt Exhibit T3A-67. Delaware PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "ERC ENERGY, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE EIGHTEENTH DAY OF APRIL, A.D. 1983, AT 10 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, CHANGING ITS NAME FROM "DRAVO ENERGY, INC." TO "ERC ENERGY, INC. ", FILED THE TWENTY-FIRST DAY OF APRIL, A.D. 1989, AT 9 O'CLOCK A.M. CERTIFICATE OF RESIGNATION OF REGISTERED AGENT WITHOUT APPOINTMENT, FILED THE TWENTY-SEVENTH DAY OF DECEMBER, A.D. 1990, AT 10 O'CLOCK A.M. CERTIFICATE OF RENEWAL, FILED THE TWENTY-EIGHTH DAY OF APRIL, A.D. 1992, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor --------------------------- 2006939 8100H Harriet Smith Windsor, Secretary of State 040135952 AUTHENTICATION: 2951856 DATE: 02-25-04 3 CERTIFICATE OF INCORPORATION OF DRAVO ENERGY, INC. FIRST. The name of the corporation is DRAVO ENERGY, INC. SECOND. The address of its registered office in the State of Delaware is 100 West Tenth Street, City of Wilmington, County of New Castle. The name of its registered agent is The Corporation Trust Company. THIRD. The nature of the business or purposes to be conducted promoted by the corporation is to engage in business activities related to the production and sale and utilization of geothermal energy and other forms or sources of energy and conduct any other lawful business, to promote any lawful purpose and to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH. The total number of shares of capital stock which the corporation shall have the authority to issue is 1,000 shares of Common Stock. The par value of all shares shall be $1 per share. FIFTH. The name and mailing address of the incorporator is as follows:
NAME MAILING ADDRESS ---- --------------- David W. Fleeger One Oliver Plaza Pittsburgh, Pennsylvania 15222
SIXTH. The names and mailing addresses of the persons who are to serve as directors until the first annual meeting of the stockholders or until their successors are elected and qualified, are as follows:
NAME MAILING ADDRESS ---- --------------- T. F. Faught One Oliver Plaza Pittsburgh, Pennsylvania 15222 P. J. Berg One Oliver Plaza Pittsburgh, Pennsylvania 15222
2 J. P. Kelly One Oliver Plaza Pittsburgh, Pennsylvania 15222
SEVENTH. The following provisions are inserted for the management of the business and for the conduct of the affairs of the corporation and for the purpose of creating, defining, limiting, and regulating powers of the corporation and its directors and stockholders. 3 (a) Elections of directors need not be by written ballot unless the by-laws of the corporation so provide. (b) The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and to merge, sell its assets and take other corporate action, to the extent and in the manner now or hereafter permitted or prescribed by statute, and all rights conferred upon the stockholders herein are granted subject to this reservation. (c) The by-laws of the corporation may be amended, altered and repealed, and new by-laws may be adopted by the stockholders or by the Board of Directors of the corporation. EIGHTH. Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stock holder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or of the application of trustees in dissolution or on any receiver or receivers appointed for this corporation under the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be agree to any compromise of arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this corporation, as the case may be, and also on this corporation. 2 THE UNDERSIGNED, David W. Fleeger, being the Incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of De1aware, does make this certificate, hereby declaring and certifying that this is the act and deed of the incorporator and the facts herein stated are true, and accordingly the undersigned has duly executed this certificate this 14th day of April, 1983. /s/ David W. Fleeger (SEAL) --------------------------------- David W. Fleeger COMMONWEALTH OF PENNSYLVANIA ) ) SS. COUNTY OF ALLEGHENY ) BE IT REMEMBERED that on this 14th day of April, 1983, personally appeared before me, a Notary Public in and for said Commonwealth and County, David W Fleeger, incorporator and party to the foregoing certificate of incorporation, known to me personally to be such, and acknowledged that the said certificate is his act and deed and that the facts stated therein are true. GIVEN under my hand and seal of office the day and year aforesaid. /s/ ----------------------------------- Notary Public Mary Ann ?, Notary Public Pittsburgh Allegheny County My Commission Expires May 19, 1984 Member Pennsylvania Association of Notaries FILED APR 21 1989 Secretary of State CERTIFICATE OF OWNERSHIP AND MERGER MERGING ERC ENERGY, INC. INTO DRAVO ENERGY, INC. ERC Energy, Inc., a Delaware corporation, desiring to merge itself with and into Dravo Energy, Inc. (the "Surviving Corporation"), a Delaware corporation and wholly-owned Subsidiary of ERC Energy, Inc., and further desiring to change the name of the Surviving Corporation to ERC Energy, Inc. has caused this Certificate of Ownership and Merger to be duly executed, acknowledged and filed on its behalf by its undersigned officer, who states as follows: (1) That the following resolutions were duly adopted by the unanimous written consent of the directors of ERC Energy, Inc. on April 19, 1989, and that the same remain in full force and effect: RESOLVED: That this Corporation merge with and into Dravo Energy, Inc., a Delaware corporation and a wholly-owned subsidiary of this Corporation, pursuant to the provisions of Section 253 of the Delaware General Corporation Law. RESOLVED FURTHER: That Dravo Energy, Inc. shall be the surviving corporation in the said merger, and the Certificate of Incorporation and By-laws of Dravo Energy, Inc. as in effect immediately prior to the merger shall constitute the Certificate of Incorporation and By-laws of the surviving corporation; provided, however that upon the effective date of the merger, the name of the surviving corporation shall be changed to ERC Energy, Inc. RESOLVED FURTHER: That promptly following the effective date of the said merger, the stock of the surviving corporation shall be issued pro rata to the holder of stock of this Corporation upon the surrender of any certificates therefor. RESOLVED FURTHER: That the officers of this Corporation be, and hereby are, authorized and directed to present the forgoing resolutions to the stockholder of this Corporation for approval, and to take such further actions and execute such documents on behalf of this Corporation as may be required in order to carry out the intent of the forgoing resolutions. (2) That the forgoing resolutions were duly presented to ERC International Inc., the Sole Stockholder of ERC Energy, Inc. and were duly approved by such Sole Stockholder on April 19, 1989 in accordance with Sections 253 and 228 of the Delaware General Corporation Law. Date: April 19, 1989 By: /s/ Jack E. Aalseth --------------------- Jack E. Aalseth President ERC Energy, Inc. Attest: Date: April 19, 1989 /s/ William L. Sargeant --------------------- William L. Sargeant Secretary ERC Energy, Inc. 2 9003610024 FILED 10 AM DEC 27 1990 Secretary of State CERTIFICATE OF RESIGNATION OF REGISTERED AGENT The undersigned hereby certifies that after due notice given pursuant to Section 136 of the General Corporation Law of Delaware, THE CORPORATION TRUST COMPANY hereby resigns as Registered Agent. Dated: November 28, 1990 THE CORPORATION TRUST COMPANY By: /s/ Kenneth J. Uva ----------------------------------- KENNETH J. UVA Vice President ATTEST BY /s/ Donald Grella ------------------------- DONALD GRELLA Assistant Secretary STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 04/28/1992 921205338 - 2006936 CERTIFICATE OF RESTORATION AND REVIVAL OF CERTIFICATE OF INCORPORATION OF ERC ENERGY, INC. It is hereby certified that 1. The name of the corporation (hereinafter called the "corporation") is ERC Energy, Inc 2. The corporation was organized under the provisions of the General Corporation Law of the State of Delaware, on the 18th day of April, 1983. 3. The address of the registered office of the corporation in the State of Delaware and the name of the registered agent at such address are as follows: The Prentice-Hall Corporation System, Inc., 32 Loockerman Square, Suite L-100, Dover, DE 19901, County of Kent. 4. The corporation hereby procures a restoration and revival of ha certificate of incorporation, which became inoperative by law on 25th February, 1991 pursuant to Section 136(c) of the General Corporation Law of the State of Delaware. 5. The certificate of incorporation of the corporation, which provides a for and will continue to provide for, perpetual duration, shall, upon the filing of this Certificate of Restoration and Revival of the Certificate of Incorporation In the Department of State of the State of Delaware, be restored and revived and shall become fully operative upon filing. 6. This Certificate of Restoration and Revival of the Certificate of Incorporation is filed by authority of the duly elected directors as prescribed by Section 312 of the General Corporation Law of the State of Delaware. Signed and attested on the 20th day of April 1992. /s/ J. Mark Elliott --------------------------------- J. Mark Elliott - President Attest: /s/Sharon G. Province - ------------------------------- Sharon G. Province - Secretary EX-99.T3A68 60 exhibit_t3a-68.txt Exhibit T3A-68. DELAWARE PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "HEBER FIELD ENERGY II, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-FIRST DAY OF APRIL, A.D. 1999, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ------------------------------------- 3032715 8100H Harriet Smith Windsor, Secretary of State 040135956 AUTHENTICATION: 2951859 DATE: 02-25-04 Exhibit T3A-68. Exhibit T3A-68. STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS CERTIFICATE OF INCORPORATION FILED 09:00 AM 04/21/1999 991157026 - 3032715 OF HEBER FIELD ENERGY II, INC. The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code end the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "General Corporation Law of the State of Delaware"), hereby certifies that: FIRST: The name of the corporation (hereinafter called the "corporation") is Heber Field Energy II, Inc. SECOND: the address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington, Delaware, County of New Castle, 19805; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100). The par value of each of such shares is One Dollar and No Cents ($1.00). All such shares are of one class arid are shares of Common Stock. Each outstanding share of which, will be entitled to one vote. FIFTH: The name and the mailing address of the incorporator are as follows:
NAME MAILING ADDRESS ---- --------------- Theresa A. McCullough 40 Lane Road Fairfield, New Jersey 07007
SIXTH: The corporation is to have perpetual existence. SEVENTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented. EIGHTH: From time to time any of the provisions of this certificate of Incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the Exhibit T3A-68. corporation by this certificate of incorporation are granted subject to the provisions of this Article Eighth. Signed on April 21, 1999 /s/ Theresa A. McCullough ----------------------------------- Theresa A. McCullough, Incorporator EX-99.T3A70 61 exhibit_t3a-70.txt EXHIBIT T3A-70. The Commonwealth of Massachusetts OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE MICHAEL J. CONNOLLY, Secretary ONE ASHBURTON PLACE, BOSTON, MASS. 02108 ARTICLES OF ORGANIZATION (Under G.L. Ch. 156B) Incorporators NAME POST OFFICE ADDRESS Include given name in full in case of natural persons: in case of a corporation, give state of incorporation. Andrew E. Nagel One Financial Center Boston, MA 02111 The above-named incorporator(s) do hereby associate (themselves) with the intention of forming a corporation under the provisions of General Laws, Chapter 156B and hereby state(s): 1. The name by which the corporation shall be known is: LMI, Inc. 2. The purpose for which the corporation is formed is as follows: To develop, construct and operate resource recovery facilities, including sanitary landfills. (Continued on page 2A attached) 86-352050 3. The total number of shares and the par value, if any, of each class of stock within the corporation is authorized as follows:
WITHOUT PAR VALUE WITH PAR VALUE CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE AMOUNT Preferred $ Common 300,000 $0.1 $3,000
*4. If more than one class is authorized, a description of each of the different classes of stock with, if any, the preferences, voting powers, qualifications, special or relative rights or privileges as to each class thereof and any series now established: N/A *5. The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are as follows: See page 5A *6. Other lawful provisions, if any, for the conduct and regulation of business and affairs of the corporation, for its voluntary ___ for limiting, defining, or regulating the powers of the corporation, or of its directors or stockholders, or of any class of stockholders: A. Meetings of the stockholders of the corporation may be held anywhere in the United States. B. The Directors of the corporation shall have the power to make, amend and repeal the By-Laws of the corporation. C. The corporation may be a partner in any business enterprise which the corporation would have the power to conduct itself. *If there are no provisions state "None". 2 - Page 5A - LMI, INC. Any stockholder, including the heirs, assigns, executors or administrators of a deceased stockholder, desiring to sell or transfer such stock owned by him or them, shall first offer it to the corporation through the Board of Directors, in the manner following: He shall notify the directors of his desire to sell or transfer by notice in writing, which notice shall contain the price at which he is willing to sell or transfer and the name of one arbitrator. The directors shall within thirty days thereafter, either accept the offer, or by notice to him in writing name a second arbitrator, and these two shall name a third. It shall then be the duty of the arbitrators to ascertain the value of the stock, and if any arbitrator shall neglect or refuse to appear at any meeting appointed by the arbitrators, a majority may act in the absence of such arbitrator. After the acceptance of the offer, or the report of the arbitrators as to the value of the stock, the directors shall have thirty Says within which to purchase the same at such valuation, but if at the expiration of thirty days, the corporation shall not have exercised the right so to purchases the owner of the stock shall be at liberty to dispose of the same in any manner he may see fit. No shares of stock shall be sold or transferred on the books of the corporation until these provisions have been complied with, but the Board of Directors may in any particular instance waive the requirement. The directors may fix in advance a record date for determining the stockholders having the right to notice of and to vote at any meeting of the stockholders or adjournment thereof or the right to receive a dividend or other distribution or any other rights specified in Chapter 185 of the Acts and Resolves of the Commonwealth of Massachusetts of 1953 and in such case, only stockholders of record on such record date shall have such rights notwithstanding any transfer of stock on the books of the corporation after such record date and all as specified in said statute. 3 47070 4 - Page 2A - LMI, INC. To purchase or otherwise acquire, invest in, own, mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade in and deal in and with real estate and personal property of every kind, class and description (including without limitation, goods, wares and merchandise of every kind, class and description), to manufacture goods, wares, and merchandise of every kind, class and description; both on its own account and for others. To borrow or lend money, and to make and issue notes, bonds, debentures, obligations, and evidence of indebtedness of all kinds, whether secured by mortgage, pledge, or otherwise, without limit as to amount, and to secure the same by mortgage, pledge, or contracts of every kind and description. To purchase, receive, take by grant, lease or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and with, real property, or any interest therein, wherever situated. To subscribe for, take, acquire, hold, sell, exchange and deal in shares, stocks, bonds, obligations and securities of. any corporation, government, authority or company; to form, promote, subsidize and assist companies, syndicates or partnerships of all kinds and to finance and refinance the same; and to guaranty the obligations of other persons, firms or corporations. To carry on any business, operation or activity referred to in the foregoing paragraphs either alone or in conjunction with, or as a partnership, joint venture or other arrangement with, any corporation, association, trust, firm or individual. To do any act necessary or incidental to the conduct of said businesses, to carry on any other business, and to do any other thing permitted by all present and future laws of the Commonwealth of Massachusetts applicable to business corporations. 5 47060 6 7. By-laws of the corporation have been duly adopted and the initial directors, president, treasurer and clerk, whose names are not out below, have been duly elected. 8. The effective date of organization of the corporation shall be the date of filing with the Secretary of the Commonwealth or if later date is desired, specify date, (not more than 30 days after date of filing.) 9. The following information shall not for any purpose be treated as a permanent part of the Articles of Organization of the corporation. a. The post office address of the initial principal office of the corporation of Massachusetts is: 191 Merrimack Street, Haverhill, MA 01830 b. The name, residence, and post office address of each of the initial directors and following officers of the corporation are as follows:
NAME RESIDENCE POST OFFICE ADDRESS President: James E. Ricci 61 Westland Terrace 191 Merrimack Street Haverhill, MA 01830 Haverhill, MA 01830 Treasurer: James E. Ricci as above as above Clerk: Irwin M. Heller 177 Hampshire Road One Financial Center Wellesley, MA 02181 Boston, MA 02111 Directors: James E. Ricci as above as above Irwin M. Heller as above as above
c. The date initially adopted on which the corporation's fiscal year ends is: December 31 d. The date initially fixed in the by-laws for the annual meeting of stockholders of the corporation is: Second Tuesday in April e. The name and business address of the resident agent, if any, of the corporation is: 7 N/A IN WITNESS WHEREOF and under the penalties of perjury the INCORPORATOR(S) sign(s) these Articles of Organization this 18th day of December 1986 /s/ Andrew E. Nagel ----------------------- Andrew E. Nagel The signature of each incorporator which is not a natural person must be an individual who shall show the capacity in which he acts and by signing shall represent under the penalties of perjury that he is duly authorized on its behalf to sign these Articles of Organization. 8 THE COMMONWEALTH OF MASSACHUSETTS ARTICLES OF ORGANIZATION GENERAL LAWS, CHAPTER 156B, SECTION 12 I hereby certify that, upon an examination of the within-written articles of organization, duly submitted to me, it appears that the provisions of the General Laws relative to the organization of corporations have been complied with, and I hereby approve said articles; and the filing fee in the amount of $150.00 having been paid, said articles are deemed to have been filed with me this 18th day of December 1986. Effective date /s/ MICHAEL J. CONNOLLY ------------------------ MICHAEL J. CONNOLLY Secretary of State PHOTO COPY OF ARTICLES OF ORGANIZATION TO BE SENT TO BE FILLED IN BY CORPORATION TO: Andre E. Nagel, Legal Assistant Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., One Financial Center, Boston, MA 02111 Telephone (617) 542-6000 FILINGFEE: 1/20 of 1% of the total amount of the authorized capital stock with par value, and one cent a share for all authorized shares without par value, but not less than $150 General Laws, Chapter 156B. Shares of stock with a par value less than one dollar shall be deemed to have par value of one dollar per share. Copy Mailed 9 THE COMMONWEALTH OF MASSACHUSETTS OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE MICHAEL JOSEPH CONNOLLY, Secretary ONE ASHBURTON PLACE, BOSTON, MASS. 02108 FEDERAL IDENTIFICATION NO. 04-2943947 ARTICLES OF AMENDMENT General Laws, Chapter 156B, Section 72 This certificate must be submitted to the Secretary of the Commonwealth within sixty days after the date of the vote of stockholders adopting the amendment. The fee for filing this certificate is prescribed by General Laws, Chapter 156B, Section 114. Make check payable to the Commonwealth of Massachusetts. We, Scott G. Mackin First Executive Vice President, and J.L Effinger, Assistant Clerk of LMI, Inc. located at 100 Recovery Way, Haverhill , Massachusetts 01930 do herby certify that the following amendment to the articles of organization of the corporation was duly adopted by unanimous written consent of share holder in lieu of special meeting September 1, 1989, by vote of 10,000 shares of Common Stock out of 10,000 shares outstanding, being at least two-thirds of each class outstanding and entitled to vote thereon and of each class or series of stock whose rights are adversely affected thereby. VOTED: To amend the Articles of Organization of the Corporation by deleting Article 5, with respect to restrictions upon the transfer of stock, in its entirety; and VOTED: To further amend the Articles of Organization of the Corporation by deleting Article 6 in its entirety, and substituting in place therefor those provisions appearing on Continuation Sheet 6A, which is attached hereto and incorporated herein by reference. (1) For amendments adopted pursuant to Chapter 156B, Section 70. (2) For amendments adopted pursuant to Chapter 156B, Section 71. Note: If the space provided under any Amendment or item on this form is insufficient, additions shall be set forth on separate 8 10 1/2 x 11 sheets of paper leaving a left hand margin of at least 1 inch for binding. Additions to more than one Amendment may be continued on a single sheet so long as each Amendment requiring each such addition is clearly indicated. (MASS. - 1636 - 4/13/87) 11 TO CHANGE the number of shares and the par value, if any, of each class of stock within the corporation fill in the following: The total presently authorized is:
NO PAR VALUE WITH PAR VALUE KIND OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE COMMON PREFERRED
CHANGE the total to:
NO PAR VALUE WITH PAR VALUE KIND OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE COMMON PREFERRED
12 ARTICLES OF ORGANIZATION Continuation Sheet 6A ARTICLE VI The other lawful provisions for the conduct and regulation of business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining or regulating the powers of the corporation, or of its directors or stockholders, or any class of stockholders, are sit forth in this Article VI. a. By-Laws. The By-laws say provide that the directors say sake, amend or repeal the By-laws in whole or in part, except with respect to any provision thereof which by law or the By-laws requires action by the stockholders. b. Meetings Meetings of the stockholders of the corporation may be held anywhere in the United States. c. Acting as Partner. The corporation say be e general or limited partner or coventurer in any business enterprise it would have power to conduct by itself. d. Indemnification. The corporation may provide, either in the corporation's By-laws or by contract, for the indemnification of directors, officers, employees and agents, by whomever elected or appointed, to the full extent presently permitted by laws provided, however, that if applicable law is hereafter modified to permit indemnification in situations where it was not thereto for permitted, then such indemnification may be permitted to the full extent permitted by such law as amended. e. Transactions with Interested Persons. The By-laws may contain provisions providing that no contract or transaction of the corporation shah be void or voidable by reason of the fact that any officer, director or stockholder of the corporation may have held an interest therein. f. Division of Directors Into Classes. The By-laws may contain provisions providing for the division of directors into net more than five classes and prescribe the tenure of office of the directors in each of the classes. g. Vote Required for Certain Transactions. The vote of a majority of the outstanding shares of each class of stock outstanding and entitled to vote thereon shall be sufficient to 13 approve any agreement of merger or consolidation of the corporation with or into another corporation or of another corporation into the corporation, or to approve any sale, lease or exchange of substantially all of the assets of the corporation, notwithstanding any provision of law that would otherwise require a greater vote in the absence of this provision of Article VI. h. Elimination of Directors' Personal Liability. No director shill be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director notwithstanding any provision of law imposing such liability provided, however, that this provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) fog acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section sixty-one or sixty-two of chapter 156B of the Massachusetts General Laws, or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this paragraph shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to the date of such amendment or repeal. 14 The foregoing amendment will become effective when these articles of amendment are filed in accordance with Chapter 156B, Section 6 of The General Laws unless these articles specify, in accordance with the vote adopting the amendment, a later effective date not more than thirty days after such filing, in which event the amendment will become effective on such later date. IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed out names this 1st day of September, in the year 1989 /s/ Scott G. Mackin ------------------- Scott G. Mackin, First Executive Vice President /s/ J.L. Effinger ----------------- J.L. Effinger, Assistant Clerk 15 THE COMMONWEALTH OF MASSACHUSETTS ARTICLES OF AMENDMENT (General Laws, Chapter 156B, Section 72) I hereby approve the within articles of amendment and, the filing fee in the amount of $200.00 having been paid, said articles are deemed to have been filed with me this 14th day of September, 1984 Effective date /s/ MICHAEL JOSEPH CONNOLLY --------------------------- MICHAEL JOSEPH CONNOLLY Secretary of State TO BE FILLED IN BY CORPORATION PHOTO COPY OF AMENDMENT TO BE SENT TO: CT CORPORATION SYSTEM 2 Oliver Street Boston, Massachusetts 02109 Telephone (617) 482-4420 Copy Mailed 16 EX-99.T3A71 62 exhibit_t3a-71.txt Exhibit T3A-71. STATE OF CALIFORNIA I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 2, page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of [California State Seal] California this day of February 26, 2004 /s/ Kevin Shelley ------------------------- Secretary of State 1 Exhibit T3A-71. ARTICLES OF INCORPORATION OF MAMMOTH GEOTHERMAL COMPANY I The name of this Corporation is MAMMOTH GEOTHERMAL COMPANY II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other then the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the State of California of this corporation's initial agent for service of process is: PARACORP INCORPORATED IV This corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is 1000. DATED: December 10, 1990 /s/ Pam Martin ------------------------------ Pam Martin, Incorporator 2 I hereby declare that I am the person who executed the foregoing Articles of Incorporation, which execution is my act and deed. /s/ Pam Martin -------------------------- Pam Martin, Incorporator 3 EX-99.T3A72 63 exhibit_t3a-72.txt Exhibit T3A-72 State of California SECRETARY OF STATE I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 2 page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this day of Feb 26 2004 /s/ Kevin Shelley ----------------- Secretary of State [SEAL] ARTICLES OF INCORPORATION OF MT. LASSEN POWER I The name of this Corporation is Mt. Lassen Power II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the State of California of this corporation's initial agent for service of process is: Donald C. Liddell, 6055 East Washington Boulevard, Commerce, California 90040. IV This corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is 10,000. DATED: January 2, 1992 /s/ Pam Martin -------------- PAM MARTIN, INCORPORATOR I hereby declare that I am the person who executed the foregoing Articles of Incorporation, which execution is my act and deed. /s/ Pam Martin -------------- PAM MARTIN EX-99.T3A73 64 exhibit_t3a-73.txt Exhibit T3A-73. State of California SECRETARY OF STATE I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 2 page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this day of Feb 26 2004 ----------------------- /s/ Kevin Shelley [SEAL] Secretary of State ARTICLES OF INCORPORATION OF MT. LASSEN POWER I The name of this Corporation is Mt. Lassen Power II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the State of California of this corporation's initial agent for service of process is: 2 Donald C. Liddell, 6055 East Washington Boulevard, Commerce, California 90040. IV This corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is 10,000. DATED: January 2, 1992 /s/ Pam Martin ------------------------- PAM MARTIN, INCORPORATOR I hereby declare that I am the person who executed the foregoing Articles of Incorporation, which execution is my act and deed. /s/ Pam Martin ------------------------ PAM MARTIN 3 Exhibit T3A-51. State of California Secretary of State I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 4 page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this day of FEB 26 2004 /s/ Kevin Shelley -------------------------- Secretary of State EX-99.T3A74 65 exhibit_t3a-74.txt Exhibit T3A-74 State of California Secretary of State I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 4 page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this day of February 26, 2004 ____________________________________________ /S/ Kevin Shelley ____________________________________________ Kevin Shelley Secretary of State 1 ARTICLES OF INCORPORATION OF PACIFIC GEOTHERMAL COMPANY I The name of this Corporation is Pacific Geothermal Company II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the State of California of this corporation's initial agent for service of process is: William A. Dorland, 810 South Flower Street, Los Angeles, California 90017. IV This corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is 10,000. DATED: January 11, 1985 /S/ David M. Turner ------------------------ 2 ________________________ David M. Turner I hereby declare that I am the person who executed the foregoing Articles of Incorporation, which execution is my act and deed. /S/ David M. Turner _________________________ David M. Turner 3 CERTIFICATE PURSUANT TO SECTION 1505 CALIFORNIA CORPORATION CODE Pacific Geothermal Company, a California corporation, makes the following statement: 1. The complete address of its office in this state wherein any entity designating it as agent may be served with process is: 6055 East Washington Boulevard Commerce, California 90040 2. The name of each person employed by it at such office to whom it authorizes the delivery of any copy of any such process is: Daniel A. Seigel Robert J. Cushman Claude Harvey Donald C. Liddell Thomas W. Drino John R. Taylor 3. Pacific Geothermal Company consents that delivery thereof to such person at the address designated shall constitute delivery of any such copy to it, as such agent. PACIFIC GEOTHERMAL COMPANY By: /s/ Daniel A. Siegel ----------------------------- Title: President Date: 12/27/89 4 CERTIFICATE OF OWNERSHIP Daniel A. Seigel and John R. Taylor certify that: 1. They are the President and Secretary, respectively, of Pacific Geothermal Company, a California corporation ("Pacific"). 2. Pacific is the parent corporation into which its subsidiary, Mammoth Geothermal Power Company, a California corporation ("Mammoth") is being merged pursuant to Section 1110'(a) of the California Corporations Code. 3. Pacific owns 100% of the outstanding shares of Pacific. 4. The Board of Directors of Pacific duly adopted the following resolution: "Resolved, that this corporation merge Mammoth Geothermal Power Company, its wholly-owned subsidiary corporation, into itself and assume all of its obligations pursuant to Section 1110 of the Corporations Code." We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. Executed in Commerce, California this 9th day of January, 1990. /S/ Daniel A. Seigel -------------------------------- Daniel A. Seigel President, Pacific Geothermal Company /S/ John R. Taylor -------------------------------- John R. Taylor Secretary, Pacific Geothermal Company 5 EX-99.T3A75 66 exhibit_t3a-75.txt Exhibit T3A-75. STATE OF CALIFORNIA SECRETARY OF STATE I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 3 page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF I execute this certificate and affix the Great Seal of the State of California this day of FEB 26 2004 /s/ Kevin Shelley ------------------ Secretary of State 1 Exhibit T3A-75. ARTICLES OF INCORPORATION OF PACIFIC OROVILLE POWER, INC. I The name of this Corporation is Pacific Oroville Power, Inc. II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the State of California of this corporation's initial agent for service of process is: John R. Taylor, 6055 East Washington Boulevard, Commerce, California 90040. 2 Exhibit T3A-75. - 2 - IV This corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is 10,000. DATED: July 15, 1985 /s/ David M. Turner ------------------- David M. Turner I hereby declare that I am the person who executed the foregoing Articles of Incorporation, which execution is my act and deed. /s/ David M. Turner ------------------- David M. Turner 3 Exhibit T3A-75. PACIFIC POWER, INC. 4000 Pierce Road Bakersfield, California 90038 June 27, 1985 California Secretary of State 1230 J Street Sacramento, CA 95814 Re: Pacific Oroville Power, Inc. Dear Sir: Pacific Power, Inc., a California corporation, hereby consents to the formation of Pacific Oroville Power, Inc., a California corporation, by David M. Turner. PACIFIC POWER, INC. By /s/ [illegible] --------------- 4 EX-99.T3A76 67 exhibit_t3a-76.txt Exhibit T3A-76. State of California Office of the Secretary of State I, MARCH FONG EU, Secretary of State of the State of California, hereby certify: That the annexed transcript has been compared with the record on file in this office, of which it purports to be a copy, and that same is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this MAY 27, 1986 [SEAL] /s/ March Fong Eu Secretary of State 1 ARTICLES OF INCORPORATION OF PACIFIC WOOD FUELS COMPANY I The name of this Corporation is Pacific Wood Fuels Company II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the State of California of this corporation's initial agent for service of process is: William A. Dorland, 810 South Flower Street, Los Angeles, California 90017. IV This corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is 10,000. DATED: May 23, 1986 /s/ David M. Turner ------------------------------------ David M. Turner I hereby declare that I am the person who executed the foregoing Articles of Incorporation, which execution is my act and deed. /s/ David M. Turner ------------------------------------ David M. Turner 2 State of California P.O. Box 944230 Bill Jones Sacramento, CA Secretary of State 94244-2300 Phone (916) 657-3537 STATEMENT BY DOMESTIC STOCK CORPORATION THIS STATEMENT MUST BE FILED WITH CALIFORNIA SECRETARY OF STATE (SEC. 1502, CORPORATIONS CODE) A $10 FILING FEE MUST ACCOMPANY THIS STATEMENT. WHEN COMPLETING FORM, PLEASE USE BLACK TYPEWRITER RIBBON OR BLACK INK IMPORTANT--Please Read Instructions On Back Of Form DO NOT ALTER PREPRINTED NAME. IF ITEM NO. 1 IS BLANK, PLEASE ENTER CORPORATE NAME. 1. PACIFIC WOOD FUELS COMPANY ID# 01531985 THE CALIFORNIA CORPORATION NAMED HEREIN, MAKES THE FOLLOWING STATEMENT 2. 40 LANE ROAD CN-2615 2A. FAIRFIELD, N.J. 2B. 07075-2615 3. 3085 CROSSROADS DRIVE 3A. READING, CA 3B. 96003 4. 40 LANE ROAD CN-2615 4A. FAIRFIELD, N.J. 4B. 07075-2615 THE NAMES OF THE FOLLOWING OFFICERS ARE: Must have these three officers (Sec. 312, Corporations Code). An officer may hold more than one office. 5. R. RICHARD ABLON 5A. 2 PENN PLAZA 5B. NEW YORK, NEW YORK 5C. 10121 6. JEFFREY HOROWITZ 6A. 40 LANE ROAD 6B. FAIRFIELD, N.J. 6C. 07075-2615 7. WILLIAM WHITMAN 7A. 40 LANE ROAD 7B. FAIRFIELD, N.J. 7C. 07075-2615 INCUMBENT DIRECTORS, INCLUDING DIRECTORS WHO ARE ALSO OFFICERS Officers may also be directors. Must have one or more directors (Chap. 3, Sec. 301a, Corporation Code). Statements not listing directors will be rejected. 8. R. RICHARD ABLON 8A. 2 PENN PLAZA 8B. NEW YORK, NEW YORK 8C. 10121 9. SCOTT G. MAKIN 9A. 40 LANE ROAD 9B. FAIRFIELD, NEW JERSEY 9C. 07075-2615 10.BRUCE W. STONE 10A. 40 LANE ROAD 10B. FAIRFIELD, NEW JERSEY 10C. 07075-2615 3 11.THE NUMBER OF VACANCIES ON THE BOARD OF DIRECTORS, IF ANY: _______________ DESIGNATED AGENT FOR SERVICE OF PROCESS (Only one agent may be named and must reside in California.) 12. Corporation Service Company which will do business in California as CSC-Lawyers Incorporating Services C1592199 13. 14. Energy Resources 15. Jeffrey R. Horowitz /s/ Jeffrey Horowitz Secretary 11/3/97 -------------------- -------------------------------------- Type or print name Signature Title Date 16. 4 EX-99.T3A77 68 exhibit_t3a-77.txt Exhibit T3A-77. STATE OF CALIFORNIA SECRETARY OF STATE'S OFFICE CORPORATION DIVISION I, TONY MILLER, Acting Secretary of State of the State of California, hereby certify: That the annexed transcript has been compared with the corporate record on file in this office, of which it purports to be a copy, and that same is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this Sept. 20, 1994 /s/ Tony Miller --------------------------- Tony Miller Acting Secretary of State 1 Exhibit T3A-77. ARTICLES OF INCORPORATION OF PACIFIC WOOD SERVICES COMPANY One: The name of this corporation is: PACIFIC WOOD SERVICES COMPANY Two: The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. Three: The name and address in the State of California of this corporation's initial agent for service of process in accordance with subdivision (b) of Section 1502 of the General Corporation Law is: Stephen J. Skuris 633 West Fifth Street Suite 5200 Los Angeles, CA 90071-2006 Four: The corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is One Thousand (1,000). Five: The liability of the directors of this corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. Six: The corporation is authorized to provide indemnification of its agents (as such term is defined in Section 317 of the General Corporation Law of California) to the fullest extent permissible under California law. Dated: September 16, 1994 /S/ Stephen J. Skuris --------------------------------- Stephen J. Skuris, Incorporator 2 Exhibit T3A-77. STATE OF CALIFORNIA BILL JONES SECRETARY OF STATE STATEMENT BY DOMESTIC STOCK CORPORATION 1. PACIFIC WOOD SERVICES COMPANY ID#01913008 THE CALIFORNIA CORPORATION NAMED HEREIN, MAKES THE FOLLOWING STATEMENT: 2. 40 LANE ROAD 2A. FAIRFILED, N.J. 2B. 07075-2615 3. - 3A. CA 3B. -- 4. 40 LANE ROAD ROOM CN-2615 4A. FAIRFIELD, N.J. 4B. 07075-2615 THE NAMES OF THE FOLLOWING OFFICERS ARE: 5. R. RICHARD ABLON 5A. 2 PENN PLAZA 5B. NEW YORK, NEW YORK 5C. 10121 6. JEFFREY HOROWITZ 6A. 40 LANE ROAD 6B. FAIRFIELD, N.J. 6C. 07075-+2615 7. WILLIAM WHITMAN 7A. 40 LANE ROAD 7B. FAIRFIELD, N.J. 7C. 07075-2615 INCUMBENT DIRECTORS, INCLUDING DIRECTORS WHO ARE ALSO 3 Exhibit T3A-77. OFFICERS: 8. R. RICHARD ABLON 8A. 2 PENN PLAZA 8B. NEW YORK, NEW YORK 8C. 10121 9. SCOTT G. MAKIN 9A. 40 LANE ROAD 9B. FAIRFIELD, N.J. 9C. 07075-2615 10. BRUCE W. STONE 10A. 40 LANE ROAD 7B. FAIRFIELD, N.J. 7C. 07075-2615 11. - DESIGNED AGENT FOR SERVICE OF PROCESS 12. Corporation Service Company which will do business in California as CSC-Lawyers Incorporating Service 01592199 13. -- 14. ENERGY RESOURCES 15. /S/ JEFFREY R. HOROWITZ, Secretary, 11/03/97 16. -- 4 EX-99.T3A78 69 exhibit_t3a-78.txt Exhibit T3A-78. Delaware PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "THREE MOUNTAIN OPERATIONS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE NINETEENTH DAY OF JUNE, A.D. 2000, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ------------------------------ Harriet Smith Windsor, Secretary of State 3247135 8100H AUTHENTICATION: 2951873 040135971 DATE: 02-25-04 1 CERTIFICATE OF INCORPORATION OF THREE MOUNTAIN OPERATIONS, INC. The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "General Corporation Law of the State of Delaware"), hereby certifies that: FIRST: the name of the corporation (hereinafter called the "corporation") is THREE MOUNTAIN OPERATIONS, INC. SECOND: The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington, Wilmington, Delaware, County of New Castle, 19805; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is 100 shares. The par value of each of such shares is $1.00. All such shares are of one class and are shares of Common Stock. Each outstanding share of which, will be entitled to one vote. FIFTH: The name and the mailing address of the incorporator are as follows:
NAME MAILING ADDRESS ---- --------------- Jane A. Gross 40 Lane Road Fairfield, NJ 07007-2615
2 SIXTH: The corporation is to have perpetual existence. Signed on June 19, 2000 /s/ Jane A. Gross ---------------------------- Incorporator Jane A. Gross 3 EX-99.T3A79 70 exhibit_t3a-79.txt Exhibit T3A-79. DELAWARE PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "THREE MOUNTAIN POWER, LLC" AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF FORMATION, FILED THE NINTH DAY OF SEPTEMBER, A.D. 1998, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID LIMITED LIABILITY COMPANY. /s/ Harriet Smith -------------------------- Windsor Harriet Smith Windsor, Secretary of State 2942568 8100H AUTHENTICATION: 2951881 040135999 DATE: 02-25-04 CERTIFICATE OF FORMATION OF THREE MOUNTAIN POWER, LLC The undersigned, an authorized natural person, for the purpose of forming a limited liability company, under the provisions and subject to the requirements of the State of Delaware (particularly Chapter 18, Title 6 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified, and referred to as the "Delaware Limited Liability Company Act"), hereby certifies that: FIRST: The name of the limited liability company (hereinafter called the "limited liability company") is THREE MOUNTAIN POWER, LLC. SECOND: The address of the registered office and the name of the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited liability Company Act is Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805. Executed on September 9, 1998 /s/ Jeffery R. --------------- Horowitz ------------------------------ Jeffrey R. Horowitz, Secretary 2 EX-99.T3A80 71 exhibit_t3a-80.txt Exhibit T3A-80 ARTICLES OF INCORPORATION OF BURNEY MOUNTAIN POWER I The name of this Corporation is Burney Mountain Power II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the state of California of this corporation's initial agent for service of process is: Donald C. Liddell, 6055 East Washington Boulevard, California 90040. IV This corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is 10,000. DATED: January 2, 1992 /s/ Pam Martin --------------------------- Pam Martin, Incorporator I hereby declare that I am the person who executed the foregoing Articles of Incorporation, which execution is my act and deed. /s/ Pam Martin --------------------------- Pam Martin, Incorporator 2 EX-99.T3A81 72 exhibit_t3a-81.txt Exhibit T3A-81 ARTICLES OF AMENDMENT OF OGDEN MARTIN SYSTEMS OF ALEXANDRIA/ARLINGTON. INC. To the State Corporation Commission Commonwealth of Virginia The following Articles of Amendment are hereby submitted pursuant to the provisions of the Virginia Stock Corporation Act on behalf of the corporation hereinafter named. 1. The name of the corporation is OGDEN MARTIN SYSTEMS OF ALEXANDRIA/ARLINGTON, INC. 2. Article First of the Articles of Incorporation of the corporation is hereby amended to read as follows: The corporate name for the corporation is COVANTA ALEXANDRIA/ARLINGTON. INC. 3. The date of adoption of the amendment herein provided for was February 28. 2001. 4. The amendment herein provided for was adopted by unanimous consent of all of the shareholders of the corporation. The designation, number of outstanding shares, and number of votes entitled to be cast by each voting group entitled to vote separately on the amendment herein provided for are as follows: DESIGNATION NUMBER OF NUMBER OF VOTES OUTSTANDING SHARES The total number of votes cast for and against the amendment herein provided for by each voting group entitled to vote separately on the said amendment is as follows: DESIGNATION NUMBER OF VOTES NUMBER OF VOTES CAST FOR AMENDMENT CAST AGAINST AMENDMENT The number of votes cast for the amendment herein provided for by each said voting group was sufficient for approval by that voting group. Executed on March 10, 2001 COVANTA ALEXANDRIA/ARLINGTON, INC. /s/ - ---------------------------------- Name Title 2 COMMONWEALTH OF VIRGINIA STATE CORPORATION COMMISSION March 22. 2001 The State Corporation Commission has found the accompanying articles submitted on behalf of COVANTA ALEXANDRIA/ARLINGTON, INC. (formerly OGDEN MARTIN SYSTEMS OF ALEXANDRIA/ARLINGTON, INC.) to comply with the requirements of law, and confirms payment of all related fees Therefore, it is ORDERED that this CERTIFICATE OF AMENDMENT be issued and admitted to record with the articles of amendment in the Office of the Clerk of the Commission, effective March 22, 2001, at 03:49 PM. The corporation is granted the authority conferred on it by law in accordance with the articles, subject to the conditions and restrictions imposed by law. STATE CORPORATION COMMISSION By /s/ ----------------------------- Commissioner 3 ARTICLES OF AMENDMENT OF ALEXANDRIA/ARLINGTON RESOURCE RECOVERY CORPORATION Pursuant to the provisions of Section 13.1-58 of the Virginia Stock Corporation Act, the undersigned corporation executes the following Articles of Amendment to its Articles of Incorporation: 1. The name of the corporation prior to this amendment is Alexandria/Arlington Resource Recovery Corporation. 2. The following amendment of the articles of Incorporation was adopted by the sole stockholder on October 1985: The First article of the Articles of Incorporation of the Corporation is amended to read as follows: "First: The name of the corporation (which is hereinafter referred to as the "Corporation") is: Ogden Martin Systems of Alexandria/Arlington, Inc." 3. On October 22, 1985 the Board of Directors of the Corporation found the amendment to the Articles of Incorporation to be in the best interest of the Corporation, adopted the amendment, and directed that the amendment be submitted to a vote by the sole stockholder of the Corporation. On October 9, 1985, the sole stockholder adopted the amendment to the Articles of Incorporation in an action without a meeting. 4 4. The total number of shares which, at the time of adoption of the amendment, were outstanding, was 1,000; entitled to vote thereon, 1,000; voted for amendment, 1,000; voted against the amendment, 0. ALEXANDRIA/ARLINGTON RESOURCE RECOVERY CORPORATION /s/ -------------------------------- Executive Vice President /s/ Bruce W. Stone -------------------------------- Secretary 5 261064 COMMONWEALTH OF VIRGINIA STATE CORPORATION COMMISSION RICHMOND, October 31, 1985 The accompanying articles having been delivered to the State Corporation Commission on behalf of OGDEN MARTIN SYSTEMS OF ALEXANDRIA/ARLINGTON, INC. (formerly ALEXANDRIA/ARLINGTON RESOURCE RECOVERY CORPORATION) and the Commission having found that the articles comply with the requirements of law and that all required fees have been paid, it is ORDERED that this CERTIFICATE OF AMENDMENT be issued, and that this order, together with the articles, be admitted to record in the office of the Commission; and that the corporation have the authority conferred on it by law in accordance with the articles, subject to the conditions and restrictions imposed by law. STATE CORPORATION COMMISSION By /s/ Elizabeth B. Lacy ----------------------------- Commissioner 6 ARTICLES OF INCORPORATION OF ALEXANDRIA/ARLINGTON RESOURCE RECOVERY CORPORATION FIRST: The name of the corporation (which is hereinafter referred to as the "Corporation") is: Alexandria/Arlington Resource Recovery Corporation SECOND: The period of the duration of the Corporation shall be perpetual. THIRD: The post office address of the initial registered office of the Corporation in Virginia is 5511 Staples Mill Road, Richmond, County of Henrico, Virginia 23228 and the name of its registered agent at such address is Edward R. Parker, Esq., a resident of the Commonwealth of Virginia and a member of the Virginia State Bar. FOURTH: The aggregate number of shares of stock which the Corporation shall have authority to issue is one thousand (1,000) shares of common stock with a par value of One Dollar ($1.00) per share. FIFTH: The number of Directors constituting the initial Board of Directors of the Corporation is five (5) and the names and addresses of the persons who are to serve as the initial Directors until the first annual meeting of the shareholders or until these successors are duly elected and shall qualify are: A. James Clark Lawrence C. Nussdorf 4930 Del Ray Avenue 4930 Del Ray Avenue Bethesda, Maryland 20814 Bethesda, Maryland 20814 A.S. McGaughan, Jr. Joseph M. Kenith 4930 Del Ray Avenue 2200 Century Parkway, N.E. Bethesda, Maryland 20814 Atlanta, Georgia 30345 W. Dennis Carroll 2200 Century Parkway, N.E. Atlanta, Georgia 30345 SIXTH: The purposes for which the Corporation is formed are: 7 To engage in the transaction of any or all lawful business for which corporations may be incorporated under the Virginia Stock Corporation Act. SEVENTH: The following provision is hereby adopted for the purpose of defining the preemptive rights of the stockholders: No holder of shares of the Corporation of any class, now or hereafter authorized, shall have any preferential or preemptive right to subscribe for, purchase or receive any shares of the Corporation of any class, now or hereafter authorized, or any options or warrants for such shares or any rights to subscribe to or purchase such shares, or any securities convertible into or exchangeable for such shares, which may at any time or from time to time be issued, sold or offered for sale by the Corporation; provided, however, that in connection with the issuance or sale of any such shares or securities, the Board of Directors of the Corporation may, in its sole discretion, offer such shares or securities, or any part thereof, for purchase or subscription by the holders of shares of the Corporation, except as may otherwise be provided by the Articles of Incorporation of the Corporation as from time to time amended. EIGHTH: The name and address of the Incorporator is: Coralyn G. Mann 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5339 Dated: September 6, 1984 /s/ Coralyn G. Mann -------------------------------- Coralyn G. Mann 8 261064 COMMONWEALTH OF VIRGINIA STATE CORPORATION COMMISSION RICHMOND, September 13, 1984 The accompanying articles having been delivered to the State Corporation Commission on behalf of ALEXANDRIA/ARLINGTON RESOURCE RECOVERY CORPORATION and the Commission having found that the articles comply with the requirements of law and that all required fees have been paid, it is ORDERED that this CERTIFICATE OF INCORPORATION be issued, and that this order, together with the articles, be admitted to record in the office of the Commission; and that the corporation have the authority conferred on it by law in accordance with the articles, subject to the conditions and restrictions imposed by law. STATE CORPORATION COMMISSION By /s/ Thomas P. Harwood, Jr. ----------------------------- Commissioner 9 EX-99.T3A82 73 exhibit_t3a-82.txt Exhibit T3A-82 CERTIFICATE OF INCORPORATION FOR OFFICE USE ONLY STOCK CORPORATION ______________________ 61-5 REV. 10-69 ACCOUNT NO. ---------------------- INITIALS EH STATE OF CONNECTICUT SECRETARY OF THE STATE The undersigned incorporator(s) hereby form(s) a corporation under the Stock Corporation Act of the State of Connecticut: 1. The name of the corporation is OGDEN MARTIN SYSTEMS OF BRISTOL, INC. 2. The nature of the business to be transacted, or the purposes to be promoted or carried out by the corporation, are as follows: To engage in any lawful act or activity for which corporations may be Formed under the Connecticut Stock Corporation Act. STATE OF CONNECTICUT OFFICE OF THE } SS. HARTFORD SECRETARY OF THE STATE } I hereby certify that this is a true copy of record in this Office. In Testimony whereof, I have hereto set my hand, and affixed the Seal of said State at Hartford, this 8th day of March A.D. 1985 /s/ - ---------------------------------- SECRETARY OF THE STATE (CONN. -- 1465 -- 10/1/71) (Continued) 3. The designation of each class of shares, the authorized number of shares of each such class, and the par value (if any) of each share thereof, are as follows: a. Common b. No. of Shares . . . 100 c. $1 par value 4. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 5. The minimum amount of stated capital with which the corporation shall commence business is 1,000 dollars. (Not less than one thousand dollars) 6. (7) - Other provisions Dated at New York, New York this 27th day of December, 1984 I/WE HEREBY DECLARE, UNDER THE PENALTIES OF FALSE STATEMENT, THAT THE STATEMENTS MADE IN THE FOREGOING CERTIFICATE ARE TRUE. This certificate of incorporation must be signed by one or more incorporators. NAME OF INCORPORATOR (Print or NAME OF INCOkPORATOR (Print or NAME OF INCORF'ORATOR (Print or Type) Type) Type) 1. Todd A. Rudner 2. Peter C. Farley 3. Ellen S. Estes - ----------------------------------------------------------------------------------------------- SIGNED (Incorporator) SIGNED (Incorporator) SIGNED (Incorporator) 1. /s/ TODD A. RUDNER 2. /s/ PETER C. FARLEY 3. /s/ ELLEN S. ESTES - ----------------------------------------------------------------------------------------------- NAME OF INCORPORATOR (Print or NAME OF INCORPORATOR (Print or NAME OF INCORPORATOR (Print or Type) Type) Type) 4. 5. 6. - ----------------------------------------------------------------------------------------------- SIGNED (Incorporator) SIGNED (Incorporator) SIGNED (Incorporator) 4. 5. 6. - -----------------------------------------------------------------------------------------------
FOR OFFICE FRANCHISE FEE FILING FEE CERTIFICATION FEE TOTAL FEES USE ONLY $50 $30 $9 $90 ---------------------------------------------------------- SIGNED (For Secretary of the State) ---------------------------------------------------------- CERTIFIED COPY SENT ON (Date) INITIALS
2 ---------------------------------------------------------- TO ---------------------------------------------------------- CARD LIST PROOF - ----------------------------------------------------------------------------------------------- 61-5 (BACK)
3 SECRETARY OF THE STATE 30 TRINITY STREET P.O. BOX 150470 HARTFORD, CT 06115-0470 APRIL 3, 2001 INTERCOUNTY CLEARANCE CORPORATION 57 PRATT ST., SUITE 410 HARTFORD, CT 06103 RE: Acceptance of Business Filing This letter is to confirm the acceptance of a filing for the following business: OGDEN MARTIN SYSTEMS OF BRISTOL, INC. Work Order Number: 2001060672-001 Business Filing Number: 0002235988 Type of Request: CERTIFICATE OF AMENDMENT File Date/Time: APR 03 2001 03:18 PM Effective Date/Time: APR 03 2001 03:18 PM Work Order Payment Received: Payment Received: 75.00 Account Balance: Customer Id: 000 Business Id: 0164349 If applicable for this type of request, a summary of the business information we have on record is enclosed. If you would like copies of this filing you must complete a Request for Corporate Copies and submit it with the appropriate fee. EVETT PEREZ Commercial Recording Division 860-509-6003 4 CERTIFICATE OF AMENDMENT STOCK CORPORATION Office of the Secretary of the State 30 Trinity Street / P.O. Box 150470 / Hartford, CT 06115- 0470 /Rev. 12/1999 Space F________________________ FILING #0002235988 PG 01 OF 02 VOL B-00401 FILED 04/03/2001 03:18 PM PAGE 02306 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE 1. NAME OF CORPORATION: Ogden Martin Systems of Bristol, Inc. 2. THE CERTIFICATE OF INCORPORATION IS (CHECK A., B. OR C.): __X__ A. AMENDED. _____ B. AMENDED AND RESTATED. _____ C. RESTATED. 3. TEXT OF EACH AMENDMENT / RESTATEMENT: Article First is amended to read: First: The name of the corporation is Covanta Bristol, Inc. (PLEASE REFERENCE AN 8 1/2 X 11 ATTACHMENT IF ADDITIONAL SPACE IS NEEDED) 5 BUSINESS FILING REPORT WORK ORDER NUMBER:2001060672-001 BUSINESS FILING NUMBER: 0002235988 BUSINESS NAME: COVANTA BRISTOL, INC. BUSINESS LOCATION: 170 ENTERPRISE DRIVE BRISTOL, CT 06010 MAILING ADDRESS: OGDEN ENERGY GROUP 40 LANE RD. FAIRFIELD, NJ 07007-2615 ** END OF REPORT ** 6 FILING #0002235988 PG 02 OF 02 VOL B-00401 FILED 04/03/2001 03:18 PM PAGE 02307 SECRETARY OF THE STATE CONNECTICUT SECRETARY OF THE STATE 4. VOTE INFORMATION (CHECK A., B. OR C.): __X__ A. THE RESOLUTION WAS APPROVED BY SHAREHOLDERS AS FOLLOWS: (SET FORTH ALL VOTING INFORMATION REQUIRED BY CONN. GEN. STAT. SECTION 33-800 AS AMENDED IN THE SPACE PROVIDED BELOW) Unanimous consent by the stock holders. _____ B. THE AMENDMENT WAS ADOPTED BY THE BOARD OF DIRECTORS WITHOUT SHAREHOLDER ACTION. NO SHAREHOLDER VOTE WAS REQUIRED FOR ADOPTION. _____ C. THE AMENDMENT WAS ADOPTED BY THE INCORPORATORS WITHOUT SHAREHOLDER ACTION. NO SHAREHOLDER VOTE WAS REQUIRED FOR ADOPTION. 5. EXECUTION: Dated this 12th day of March, 2001. Patricia Collins Asst. Secretary /s/ Patricia Collins PRINT OR TYPE NAME OF CAPACITY OF SIGNATORY SIGNATURE SIGNATORY 7 EX-99.T3A83 74 exhibit_t3a-83.txt Exhibit T3A-83 ARTICLES OF AMENDMENT OF OGDEN MARTIN SYSTEMS OF FAIRFAX, INC. To the State Corporation Commission Commonwealth of Virginia The following Articles of Amendment are hereby submitted pursuant to the provisions of the Virginia Stock Corporation Act on behalf of the corporation hereinafter named. 1. The name of the corporation is OGDEN MARTIN SYSTEMS OF FAIRFAX, INC. 2. Article First of the Articles of Incorporation of the corporation is hereby amended to read as follows: The corporate name for the corporation is COVANTA FAIRFAX, INC. 3. The date of adoption of the amendment herein provided for was February 28, 2001. 4. The amendment herein provided for was adopted by unanimous consent of all of the shareholders of the corporation. 1 The designation, number of outstanding shares, and number of votes entitled to be cast by each voting group entitled to vote separately on the amendment herein provided for are as follows: Designation Number of Number of Votes Outstanding Shares The total number of votes cast for and against the amendment herein provided for by each voting group entitled to vote separately on the said amendment is as follows: Designation Number of Votes Number of Votes Cast For Amendment Cast Against Amendment The number of votes cast for the amendment herein provided for by each said voting group was sufficient for approval by that voting group. Executed on March 22, 2001. COVANTA FAIRFAX, INC. /s/ - -------------------------------- Name Title 2 COMMONWEALTH OF VIRGINIA STATE CORPORATION COMMISSION March 22, 2001 The State Corporation Commission has found the accompanying articles submitted on behalf of COVANTA FAIRFAX, INC. (formerly OGDEN MARTIN SYSTEMS OF FAIRFAX, INC.) to comply with the requirements of law, and confirms payment of all related fees. Therefore, it is ORDERED that this CERTIFICATE OF AMENDMENT be issued and admitted to record with the articles of amendment in the Office of the Clerk of the Commission, effective March 22, 2001, at 03:50 PM. The corporation is granted the authority conferred on it by law in accordance with the articles, subject to the conditions and restrictions imposed by law. STATE CORPORATION COMMISSION By /s/ ----------------------------- Commissioner 3 ARTICLES OF INCORPORATION OF Ogden Martin Systems of Fairfax, Inc. * * * * * 1. The undersigned intends to form a stock corporation under the provisions of Chapter 9 of Title 13.1 of the Code of Virginia and, to that end, sets forth the following: 2. The name of the corporation is Ogden Martin Systems of Fairfax, Inc. 3. The number of shares the corporation is authorized to issue is one hundred (100) Common shares with a par value of One Dollar ($1.00). 4. The post-office address of the initial registered office, including street and number, is 5511 Staples Mill Road, Richmond, Virginia 23228. 5. The registered office is located in the County of Henrico. 6. The name of the initial registered agent is EDWARD R. PARKER, who is a resident of Virginia and a member of the Virginia State Bar and whose business office is identical with the registered office. /s/ Gregory H. Wanner -------------------------------- Gregory H. Wanner, Incorporator /s/ Richard C. Franzen -------------------------------- Richard C. Franzen, Incorporator /s/ Michael B. Schiaparelli -------------------------------- Michael B. Schiaparelli, Incorporator 4 COMMONWEALTH OF VIRGINIA STATE CORPORATION COMMISSION JUNE 2, 1987 CERTIFICATE OF INCORPORATION The State Corporation Commission has found the accompanying articles submitted on behalf of OGDEN MARTIN SYSTEMS OF FAIRFAX, INC. to comply with the requirements of law, and confirms payment of all related fees. Therefore, it is ORDERED that this CERTIFICATE OF INCORPORATION be issued, and admitted to record with the articles in this office of the Commission, effective June 2, 1987. The corporation is granted the authority conferred on it by law in accordance with the articles, subject to the conditions and restrictions imposed by law. STATE CORPORATION COMMISSION By /s/ Elizabeth B. Lacy ----------------------------- Commissioner 5 EX-99.T3A85 75 exhibit_t3a-85.txt Exhibit T3A-85 BENJAMIN J.CAVETANO RAYMOND H. SATO GOVERNOR COMPTROLLER MARY PATRICIA WATERHOUSE DEPUTY COMPTROLLER STATE OF HAWAII DEPARTMENT OF ACCOUNTING AND GENERAL SERVICES ARCHIVES DIVISION Hawaii State Archives Iolani Palace Grounds Honolulu, Hawaii 96813 I, JOLYN G. TAMURA, State Archivist of the Public Archives of the State of Hawaii, do hereby certify that the attached document is a true and correct copy of Partnership Registration Statement of HONOLULU RESOURCE RECOVERY VENTURE, registered on December 21, 1983, File No. 10303G5, from Partnership Registration Statements [Series 232], Department of Commerce and Consumer Affairs on in the STATE ARCHIVES, at Honolulu, State of Hawaii. Witness my hand and seal this 22nd day of January, 2001 at Honolulu, State of Hawaii. By: /s/ Jolyn G. Tamura ----------------------------------- JOLYN G. TAMURA, STATE ARCHIVIST 1 STATE OF HAWAII DEPARTMENT OF REGULATORY AGENCIES Business Registration Division 1010 Richards Street Mailing Address: P.O. Box 40, Honolulu, Hawaii 96810 PARTNERSHIP REGISTRATION STATEMENT of Honolulu Resource Recovery Venture (name of partnership) This is to certify that the undersigned persons farmed a general partnership under the above name, and submit the following information as required by law: 1. The partnership was formed on December 19, 1983 2. The name and residence address of each partner is Combustion Engineering Hawaii, Inc. Oahu Waste Energy Recovery, Inc. c/o Combustion Engineering, Inc. 700 Bishop Street 908 Long Ridge Road P.O. Box 3230 Stamford, Connecticut 06902 Honolulu, Hawaii 96801 3. The partnership is engaged in the business of designing, constructing, operating and maintaining a solid waste disposal and resource recovery facility. 4. The principal place of business is at 700 Bishop Street, Honolulu, Hawaii 96813. 5. None of the partners is either a minor or an incompetent person. We certify, under the penalties set forth in Section 425-13 of the Hawaii Revised Statutes, that we have read the above statement and that the same is true and correct. Witness our hands this 21st day of December, 1983 Combustion Engineering Hawaii, Inc. Oahu Waste Energy Recovery, Inc. By: /s/ George E. St. John By: /s/ ------------------------------------ --------------------------- Assistant Secretary Vice President By: /s/ --------------------------- Secretary (over) EXPEDITED REVIEW Received Business Registration FORM GP-2 Division 03/19/2001 4:11 PM 1/2000 Department of Commerce and Consumer Affairs State of Hawaii STATE OF HAWAII DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS Business Registration Division 1010 Richards Street Mailing Address: P.O. Box 40, Honolulu, Hawaii 96810 PARTNERSHIP CHANGE OF NAME STATEMENT (Section 425-7, Hawaii Revised Statutes) PLEASE TYPE OR PRINT LEGIBLY IN BLACK INK The partners changed the firm name, and submit the following information as required by law: 1. The former name of the domestic general partnership was: HONOLULU RESOURCE RECOVERY VENTURE. (name of Partnering Prior to change) 2. The partners changed the name to: COVANTA HONOLULU RESOURCE RECOVERY VENTURE. (New Name of Partnership) 3. The date of this change was: February 28, 2001. (Month Day Year) I certify, under the penalties set forth in Section 425-13, Hawaii Revised Statutes, that I have read the above statements and that the same are true and correct. Signed this 12th day of March, 2001. OGDEN PROJECTS OF HAWAII, INC. By: /s/ Patricia Collins ---------------------------- By: Patricia Collins Assistant Secretary EX-99.T3A86 76 exhibit_t3a-86.txt Exhibit T3A-86 ARTICLES OF INCORPORATION INC. MASSBURN, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of The Indiana General Corporation Act, as amended (hereinafter referred to as the "Act"), executes the following Articles of Incorporation. ARTICLE I Name The name of the Corporation is MASSBURN, Inc. ARTICLE II Purposes and Powers Section 2.1. Purposes. The purposes for which the Corporation is formed are: a. To acquire, construct, operate, use, occupy, and employ any facility, plant, works, system, building, structure, improvement, machinery, equipment, fixture, or other real or personal property to be used or employed for the storage, processing, reduction, conversion, or disposal of solid waste or waste by-products. b. To buy, sell, produce, manufacture and dispose of all goods, wares, merchandise, supplies and products, provide services, and generally to engage in and conduct any manufacturing, sales or service enterprise. c. In general, to transact any and all lawful business for which corporations may be incorporated under the Act. Section 2.2. Powers. Subject to any limitation or restriction imposed by law or any provision of these Articles of Incorporation, the Corporation shall have the power: a. To do everything necessary, convenient or expedient to accomplish the purposes hereinbefore set forth; and b. To exercise and enjoy in furtherance of the purposes 1 hereinbefore set forth all the rights, privileges and powers granted to the Corporation by these Articles of Incorporation, the Act, as now or hereafter amended, and the common law. ARTICLE III Term of Existence The Corporation shall have perpetual existence. ARTICLE IV Resident Agent and Principal Office Section 4.1. Resident Agent. The name and post office address of the resident agent of the Corporation are John Ryan, 1601 City--County Building, Indianapolis, Indiana 46204. Section 4.2. Principal Office. The post office address of the principal office of the Corporation is 1601 City--County Building, Indianapolis, Indiana 46204. ARTICLE V Authorized Shares Section 5.1. Number. The total number of shares which the Corporation shall have authority to issue is one thousand (1,000) shares without par value, and no shares with par value. Section 5.2. Classes. There shall be one (1) class of shares of the Corporation which shall be designated as "Common Shares." Section 5.3. Relative Rights. All Common Shares shall have the same rights, preferences, limitations and restrictions. Section 5.4. Voting Rights of Shares. Each holder of Common Shares shall be entitled to one (1) vote for each share owned of record on the books of the Corporation on each matter submitted to a vote of the holders of Common Shares. ARTICLE VI Initial Stated Capital The amount of initial stated capital of the Corporation 2 shall be One Thousand Dollars ($1,000), and the Corporation will not commence business until such amount has been received for the issuance of shares as its initial stated capital. ARTICLE VII Directors Section 7.1. Number. The initial board of directors shall be composed of two (2) members. The by--laws of the Corporation shall specify from time to time the number of directors of the Corporation. Section 7.2. Initial Board of Directors. The names and post office addresses of the initial board of directors of the Corporation are:
Names Addresses John Ryan 1601 City--County Building Indianapolis, Indiana 46204 Kristie Hill 1601 City--County Building Indianapolis, Indiana 46204
Section 7.3. Classes of Directors. The by--laws of the Corporation may provide that the board of directors may be divided into classes whose terms of office expire at different times, under terms and conditions consistent with the Act. ARTICLE VIII Incorporator The name and post office address of the incorporator of the Corporation are:
Name Address John Ryan 1601 City--County Building Indianapolis, Indiana 46204
ARTICLE IX Provisions for Regulation of Business and Conduct of Affairs of the Corporation 3 Section 9.1. Issuance of Shares. Authorized but unissued shares and treasury shares of the Corporation may be issued or sold from time to time upon such terms and conditions, for such consideration, and to such persons, corporations or other legal entities as the board of directors may determine without authorization or approval of the holders of Common Shares. The board of directors may allocate the consideration received upon the issuance of shares between the stated capital and surplus accounts of the Corporation. Section 9.2. Place of Meetings. Meetings of the holders of Common Shares and meetings of the board of directors shall be held at such places, either within or without the State of Indiana, as shall be specified in the respective calls and notices or waivers of notice of such meetings given in accordance with the by--laws. Section 9.3. Indemnification of Directors and Officers. (a) As used in this section: (1) "Director" means any person who is or was a director of this Corporation and any person who, while a director of this Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, other enterprise or employee benefit plan. (2) "Expenses" include attorneys' fees. (3) "Official capacity" means (A) when used with respect to a director, the office of director in the Corporation, and (B) when used with respect to a person other than a director, as contemplated in subsection (i), the elective or appointive office in the Corporation held by the officer or the employment or agency relationship undertaken by the employee or agent in behalf of the Corporation, but in each case does not include service for any other foreign or domestic corporation or any partnership, joint venture, trust, other enterprise, or employee benefit plan. 4 (4) "Party" includes a person who was, is, or is threatened to be made, a named defendant or respondent in a proceeding. (5) "Proceeding" means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative. (b) The Corporation shall have power to indemnify any person made a party to any proceeding by reason of the fact that he is or was a director if (1) he conducted himself in good faith; and (2) he reasonably believed (A) in the case of conduct in his official capacity with the Corporation, that his conduct was in its best interest, and (B) in all other cases, that his conduct ~as at least not opposed to its best interests; and (3) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. Indemnification may be made against judgments, penalties, fines, settlements and reasonable expenses, actually incurred by the person in connection with the proceeding; except that if the proceeding was by or in the right of the Corporation, indemnification may be made only against such reasonable expenses and shall not be made in respect of any proceeding in which the person shall have been adjudged to be liable to the Corporation. The termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nob contendere or its equivalent, shall not, of itself, be determinative that the person did not meet the requisite standard of conduct set forth in this subsection (b). (c) A director shall not be indemnified under subsection (b) in respect of any proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he shall have been adjudged to be liable on 5 the basis that personal benefit was improperly received by him. (d)(1) A director who has been wholly successful, on the merits or otherwise, in the defense of any proceeding referred to in subsection (b) shall be indemnified against reasonable expenses incurred by him in connection with the proceeding; and (2) a court of appropriate jurisdiction, upon application of a director and such notice as the court shall require, shall have authority to order indemnification in the following circumstances: (A) if it determines a director is entitled to reimbursement under clause (1), the court shall order indemnification, in which case the director shall also be entitled to recover the expenses of securing such reimbursement; or (B) if it determines that the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not he has met the standard of conduct set forth in subsection (b) or has been adjudged liable in the circumstances(1) described in subsection (c), the court may order such indemnification as the court shall deem proper, except that indemnification with respect to any proceeding by or in the right of the Corporation or in which liability shall have been adjudged in the circumstances described in subsection (c) shall be limited to expenses. A court of appropriate jurisdiction may be the same court in which the proceeding involving the director's liability took place. (e) No indemnification under subsection (b) shall be made by the Corporation unless authorized in the specific case after a determination has been made that indemnification of the director is permissible in the circumstances because he has met the standard of conduct set forth in subsection (b), but such indemnification shall be provided once such determination has been made. Such determination shall be made: (1) by the board of directors by a majority vote of a 6 quorum consisting of directors not at the time parties to the proceeding; or (2) if such a quorum cannot be obtained, then by a majority vote of a committee of the board, duly designated to act in the matter by a majority vote of the full board (in which designation directors who are parties may participate), consisting solely of two or more directors not at the time parties to the proceeding; or (3) by special legal counsel, selected by the board of directors or a committee thereof by vote as set forth in clauses (1) or (2) of this subsection (e), or, if the requisite quorum of the full board cannot be obtained therefor and such committee cannot be established, by a majority vote of the full board (in which selection directors who are parties may participate); or (4) by the shareholders. Authorization of indemnification and determination as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination that indemnification is permissible is made by special legal counsel, authorization of indemnification and determination as to reason, ableness of expenses shall be made in a manner specified in clause (3) in the preceding sentence for the selection of such counsel. Shares held by directors who are parties to the proceeding shall not be voted on the subject matter under this subsection (e). (f) Reasonable expenses incurred by a director who is a party to a proceeding may be paid or reimbursed by the Corporation in advance of the final disposition of such proceeding upon receipt by the Corporation of (1) a written affirmation by the director of his good faith belief that he has met the standard of conduct necessary for indemnification by the Corporation as authorized in this section, and 7 (2) a written undertaking by or on behalf of the director to repay such amount if it shall ultimately be determined that he has not met such standard of conduct, and after a determination that the facts then known to those making the determination would not preclude indemnification under this section. The undertaking required by clause (2) shall be an unlimited general obligation of the director but need not be secured and may be accepted without reference to financial ability to make repayment. Determinations and authorizations of payments under this subsection (f) shall be made in the manner specified in subsection (e). (g) The Corporation shall have the power to pay or reimburse expenses incurred by a director in connection with his appearance as a witness in a proceeding at a time when he has not been made a named defendant or respondent in the proceeding. (h) For purposes of this section, the Corporation shall be deemed to have requested a director to serve an employee benefit plan whenever the performance by him of his duties to the Corporation also imposes duties on, or otherwise involves services by, him to the plan or participants or beneficiaries of the plan; excise taxes assessed on a director with respect to an employee benefit plan pursuant to applicable law shall be deemed "fines"; and action taken or omitted by him with respect to an employee benefit plan in the performance of his duties for a purpose reasonably believed by him to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not .opposed to the best interests of the Corporation. (i) (1) An officer of the Corporation shall be indemnified as and to the same extent provided in subsection (d) for a director and shall be entitled to the same extent as a director to seek indemnification pursuant to the provisions of subsection (d); (2) the Corporation shall have the power to indemnify and to advance expenses to an officer, employee or agent of the Corporation to the same extent that it 8 may indemnify and advance expenses to directors pursuant to this section; and (3) the Corporation, in addition, shall have the power to indemnify and to advance expenses to an officer, employee or agent who is not a director to such further extent, consistent with law, as may be provided by these Articles of Incorporation, the by--laws, general or specific action of its board of directors, or contract. (j) The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or who, while a director, officer, employee or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, other enterprise or employee benefit plan, against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this section. (k) Any indemnification of, or advance of expenses to, a director in accordance with this section, if arising out of a proceeding by or in the right of the Corporation, shall be reported in writing to the shareholders with or before the notice of the next shareholders' meeting. (l) It is the intent of this Section 9.3 to empower the Corporation to provide indemnification to the fullest extent possible as long as such indemnification is not prohibited by law or by the express terms of this Section. Therefore, indemnification may be provided irrespective of the nature of the legal or equitable theory upon which a claim is made, including but not limited to whether or not the person to be indemnified is charged with negligence, breach of contract, breach of warranty, strict liability, breach of a fiduciary duty, mismanagement, corporate waste, or any violation of federal or state securities law. The provisions of this Section 9.3 shall not limit any other rights of indemnification to which a director otherwise may be 9 entitled by law. Section 9.4. Powers of Board of Directors. Subject to any limitation or restriction imposed by law or by these Articles of Incorporation, the board of directors may exercise, in furtherance of the purposes of the Corporation, all the powers of the Corporation without authorization or approval of the holders of Common Shares. Section 9.5. Distributions upon Shares. The board of directors shall have authority to authorize and direct the payment of dividends and the making of other distributions by the Corporation in respect of its shares at such times, in such amounts and forms, from such sources (specifically including, but not limited to, the unrestricted and unreserved capital surplus of the Corporation) and upon such terms and conditions as it may, from time to time, determine, subject to such restrictions, limitations, conditions and requirements as may be imposed by law or by these Articles of Incorporation. Section 9.6. Acquisition of Shares. The board of directors shall have authority to authorize and direct the acquisition by the Corporation of its shares at such times, in such amounts, from such persons, for such consideration, from such sources (specifically including, but not limited to, the unrestricted and unreserved capital surplus of the Corporation) and upon such terms and conditions as it may from time to time determine, subject to such restrictions, conditions, and requirements as may be imposed by law or by these Articles of Incorporation. Section 9.7. Executive Committee and Other Committees. The powers and duties conferred or imposed upon the board of directors by law and by these Articles of Incorporation may be exercised or performed by an executive committee or by one or more such other committees as may from time to time be designated in a manner and to the extent specified in the by--laws. IN WITNESS WHEREOF, the undersigned incorporator designated in Article VIII executes these Articles of Incorporation and hereby verifies subject to penalties of perjury that the facts contained herein are true. Dated this 12 day of December, 1984. /s/ John Ryan ---------------------- John Ryan 10 This instrument was prepared by Gregory L. Pemberton, ICE MILLER DONADIO & RYAN, One American Square, Box 82001, Indianapolis, Indiana 46282. 11 EX-99.T3A89 77 exhibit_t3a-89.txt Exhibit T3A-89 ARTICLES OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF STANISLAUS, INC I The name of this corporation is OGDEN MARTIN SYSTEMS OF STANISLAUS, INC. II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name OF this corporation's initial agent for service of process is: C T CORPORATION SYSTEM IV This corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is 100. Dated: November 27, 1985 /s/ William S. Gregory -------------------------------- WILLIAM S. GREGORY, Incorporator CONSENT TO USE OF NAME Ogden Martin Systems of L.A., Inc., a corporation organized under the laws of the State of Delaware hereby consents to the organization-qualification of Ogden Martin Systems of Stanislaus, Inc. in the State of California IN WITNESS WHEREOF the said Ogden Martin Systems of L.A., Inc. has caused this consent to be executed by its Vice president and attested under its corporate seal by its secretary, this___________ day of ________________, 19__ Ogden Martin Systems of L.A. Inc. By: /s/ ----------------------------- Vice President Attest: /s/ - ---------------------------- Secretary (SEAL) 2 CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF OGDEN MARTIN SYSTEMS OF STANISLAUS, INC David L. Sokol and Bruce W. Stone certify that: 1. They are the President and the Secretary, respectively, of OGDEN MARTIN SYSTEMS OF STANISLAUS, INC., a California corporation. 2. Article I of the Articles of Incorporation of this Corporation is amended to read as follows: "The name of this corporation is STANISLAUS WASTE ENERGY COMPANY." 3. The foregoing Amendment of Articles of Incorporation has been duly approved by the Board of Directors. 4. The foregoing Amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902 of the Corporations Code. The total number of outstanding shares of the corporation is 100. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. We declare under penalty of perjury under the laws of the State of California that the matters set forth in this Certificate are true and correct of our own knowledge. Executed on this 17th day of December 1985. 3 /s/ David L. Sokol -------------------------------- David L. Sokol, President /s/ Bruce W. Stone -------------------------------- Bruce W. Stone, Secretary 4 CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF STANISLAUSWASTE ENERGY COMPANY David 1. Sokol and Scott G. Mackin certify that: 1. They are the President and the Secretary, respectively, of STANISLAUS WASTE ENERGY COMPANY, a California corporation. 2. Article I of the Articles of Incorporation of this Corporation is amended to read as follows: "The name of this corporation is OGDEN MARTIN SYSTEMS OF STANISLAUS, INC." 3. The foregoing Amendment of the Articles of Incorporation has been duly approved by the Board of Directors. 4. The foregoing Amendment of the Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902 of the Corporations Code. The total number of outstanding shares of the corporation is 100. The percentage vote required was more than 501., and the number of shares voting in favor of the amendment equaled or exceeded the vote required. We declare under penalty Of perjury under the laws of the State of California that the matters set forth In this Certificate are true and correct. Executed on this 27 day of April, 1990. /s/ -------------------------------- David L. Sokol, President /s/ -------------------------------- Scott G. Mackin, Secretary 5 CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION The undersigned certify that: 1. They are the executive vice-president and assistant secretary, respectively, of OGDEN MARTIN SYSTEMS OF STANISLAUS, INC., a California corporation. 2. Article one of the Articles of incorporation of' this corporation is amended to read as follows: First: The name of the Corporation is COVANTA STANISLAUS, INC. 3. The foregoing amendment of Articles of Incorporation has been duly approved by the board of directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902, California Corporations Code. The total number of outstanding shares of the corporation is 100. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. Dated: November 27, 1985 /s/ Anthony Orlando -------------------------------- Anthony Orlando, Executive Vice President /s/ Patricia Collins -------------------------------- Patricia Collins, Asst Secretary 6 EX-99.T3A90 78 exhibit_t3a-90.txt Exhibit T3A-90 50M C.D. ARO-3 (Rev. 12-80)176470 - ----------- Examiner The Commonwealth of Massachusetts OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE MICHAEL JOSEPH CONNOLLY, Secretary ONE ASHBURTON PLACE, BOSTON, MASS. 02108 ARTICLES OF ORGANIZATION (Under G.L. Ch. 156B) Incorporators NAME POST OFFICE ADDRESS Include given name in full in case of natural persons; in case of a corporation, give state of incorporation. Sean D. Smith One Financial Center Boston, MA 02111 The above-named incorporator(s) do hereby associate (themselves) with the intention of forming a corporation under the provisions of General Laws, Chapter 156B and hereby state(s): - --------- Name Approved 1. The name by which the corporation shall be known is: Haverhill Power, Inc. 2. The purpose for which the corporation is formed is as follows: To develop, construct and operate resource recovery facilities. Continued on Page 2A C [ ] P T M [ ] R.A. [ ] 85 340018 6 Note: If the space provided under any article or item on this form is _____ insufficient, additions shall be set forth on separate 8 -1/2 x 11 P.C. sheets of paper leaving a left hand margin of at least 1 inch for binding. Additions to more than one article may be continued on a single sheet so long as each article requiring each such addition is clearly indicated. 3. The total number of shares and the par value, if any, of each class of stock within the corporation is authorized as follows:
CLASS OF STOCK WITHOUT PAR VALUE WITH PAR VALUE NUMBER OF SHARES NUMBER OF SHARES PAR VALUE AMOUNT Preferred None None --- $ ------ Common None 300,000 $.01 $ 3,000
*4. If more than one class k authorized, a description of each of the different classes of stock with, if any, the preferences, voting powers, qualifications, special or relative rights or privileges as to each class thereof and any series now established: None *5. The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are as follows: See Page 5A *6. Other lawful provisions, if any. for the conduct and regulation of business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or o its directors or stockholders, or of any class of stockholders: a. Meetings of the stockholders of the corporation may be held anywhere in the United States. b. The Directors of the corporation may make, amend or repeal the By-Laws of the corporation. c. The corporation may be a partner in any business enterprise which the corporation would have the power to conduct itself *If there are no provisions state "None". - Page 2A - 2 HAVERHILL POWER, INC. To purchase or otherwise acquire, invest in, own, mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade in and deal in and with real estate and personal property of every kind, class and description (including, without limitation, goods, wares and merchandise of every kind, class and description), to manufacture goods, wares, and merchandise of every kind, class and description; both on its own account and for others. To borrow or lend money, and to make and issue notes, bonds, debentures, obligations, and evidence of indebtedness of all kinds, whether secured by mortgage, pledge, or otherwise, without limit as to amount, and to secure the same by mortgage, pledge, or contracts of every kind and description. To purchase, receive, take by grant, lease or otherwise acquire, own, hold, improve, employ, use and otherwise deal in and with, real property, or any interest therein, wherever situated. To subscribe for, take, acquire, bold, sell, exchange and deal in shares, stocks, bonds, obligations and securities of any corporation, government, authority or company; to form, promote, subsidize and assist companies, syndicates or partnerships of all kinds and to finance and refinance the same; and to guaranty the obligations of other persons, firms or corporations. To carry on any business, operation or activity referred to in the foregoing paragraphs either alone or in conjunction with, or as a partnership, joint venture or other arrangement with, any corporation, association, trust, firm or individual. To do any act necessary or incidental to the conduct of said businesses, to carry on any other business, and to do any other thing permitted by all present and future laws of the Commonwealth of Massachusetts applicable to business corporations. 5357R 3 - Page 5A - HAVERHILL POWER, INC. Any stockholder, including the heirs, assigns, executers or administrators of a deceased stockholder, desiring to sell or transfer such stock owned by him or them, shall first offer it to the corporation through the Board of Directors, in the manner following: He shall notify the directors of his desire to sell or transfer by notice in writing, which notice shall contain the price at which he is willing to sell or transfer and the name of one arbitrator. The directors shall within thirty days thereafter, either accept the offer, or by notice to him in writing name a second arbitrator, and these two shall name a third. It shall then be the duty of the arbitrators to ascertain the value of the stock, and if any arbitrator shall neglect or refuse to appear at any meeting appointed by the arbitrators, a majority may act in the absence of such arbitrator. After the acceptance of the offer, or the report of the arbitrators as to the value of the stock, the directors shall have thirty days within which to purchase the same at such valuation, but if at the expiration of thirty days, the corporation shall not have exercised the right so to purchase, the owner of the stock shall be at liberty to dispose of the same in any manner he may see fit. No shares of stock shall be sold or transferred on the books of the corporation until these provisions have been complied with, but the Board of Directors may in any particular instance waive the requirement. The directors may fix in advance a record date for determining the stockholders having the right to notice of and to vote at any meeting of the stockholders or adjournment thereof or the right to receive a dividend or other distribution or any other rights specified in Chapter 185 of the Acts and Resolves of the Commonwealth of Massachusetts of 1953 and in such case, only stockholders of record on such record date shall have such rights notwithstanding any transfer of stock on the books of the corporation after such record date and all as specified in said statute. 5352R 4 7. By-laws of the corporation have been duly adopted and the initial directors. president, treasurer and clerk, whose names are set out below, have been duly elected. 8. The effective date of organization of the corporation shall be the date of filing with the Secretary of the Commonwealth or if later date is desired, specify date, (not more than 30 days after the date of filing.) 9. The following information shall not for any purpose be treated as a permanent part of the Articles of Organization of the corporation. a. The post office address of the initial principal office of the corporation of Massachusetts is: 191 Merrimack Street Haverhill, MA 01830 b. The name, residence, and post office address of each of the initial directors and following officers of the corporation are as follows:
NAME RESIDENCE POST OFFICE ADDRESS Vice President: Rocco Schelzi 11 Parry Place Woburn, MA 01801 191 Merrimack Street Haverhill, MA 01830 President: James E. Ricci 61 Westland Terace Haverhill, See Above MA 01830 Treasurer: Vincent Barletta 550 Common Street Dedham, MA See Above 02036 Clerk: Irwin M. Heller 177 Hampshire Road Wellesley, One Financial Center Boston, MA MA 02181 02111 Directors: James E. Ricci See Above 191 Merrimack Street Haverhill, MA 01830 Rocco Schelzi See Above See Above Vincent Barletta See Above See Above
c. The date initially adopted on which the corporation fiscal year ends is: December 31 d. The date initially fixed in the by-laws for the annual meeting of stockholders of the corporation is: Second Tuesday in April e. The name and business address of the resident agent. if any, of the corporation is: N/A IN WITNESS WHEREOF and under the penalties of perjury the INCORPORATOR(S) sign(s) these Articles of Organization this 5th day of December l985 /s/ Sean D. Smith - ------------------------------------------------------------------------ Sean D. Smith - ------------------------------------------------------------------------ The signature of each incorporator which is not a natural person must be an individual who shall show the capacity in which he acts and by signing shall represent under the penalties of perjury that he is duly authorized on its behalf to sign these Articles of Organization. 5 THE COMMONWEALTH OF MASSACHUSETTS ARTICLES OF ORGANIZATION GENERAL LAWS, CHAPTER 156B, SECTION 12 I hereby certify that, upon an examination of the within-written articles of organization, duly submitted to me, it appears that the provisions of the General Laws relative to the organization of corporations have been complied with, and I; hereby approve said articles; and the filing fee in the amount of $150.00 having been paid, said articles are deemed to have been filed with me this 6th day of December 1985 Effective date /s/ Michael Joseph Connolly ------------------------------- MICHAEL JOSEPH CONNOLLY ~ Secretary of State PHOTO COPY OF ARTICLES OF ORGANIZATION TO BE SENT TO BE FILLED IN BY CORPORATION TO: Sean D. Smith, Legal Assistant Mintz, Levin, Cohn, Ferris, Glovsky & Pepeo, P.C. One Financial Center Boston, MA 02111 Telephone (617) 542-6000 FILING FEE: 1/20 of 1% of the total amount of the authorized capital stock with par value, and one cent a share for all authorized shares without par value but not less than $150 General Laws, Chapter 156B. Shares of stock with a par value less than one dollar shall be deemed to have par value of one dollar per share. Copy Mailed 6 EX-99.T3A91 79 exhibit_t3a-91.txt EXHIBIT T3A-91 CERTIFICATE OF INCORPORATION OF MICHIGAN WASTE ENERGY, INC. The undersigned, in order to form a corporation for the purpose hereinafter stated, under and pursuant to the provisions of the Delaware General Corporation Law, hereby certifies that: 1. The name of the corporation is Michigan Waste Energy, Inc. (the "Corporation"). 2. The registered office and registered agent of the Corporation is The Corporation Trust Company, 1209 Orange Street, Wilmington, County of New Castle, Delaware 19801. 3. The Corporation shall not engage in any activities other than: (a) the execution and delivery of, and the performance of its obligations under, (i) the First Novation Agreement (the "First Novation Agreement") among the Corporation, Combustion Engineering, Inc. ("C-E") and Greater Detroit Resources Recovery Authority (the "Authority"); (ii) the Second Novation Agreement (the "Second Novation Agreement") among the Corporation, C-E and The Detroit Edison Company; (iii) the Amended and Restated Agreement for Design, Engineering, Construction, Start Up and Testing of Solid Waste Disposal, Resource Recovery and Energy Generating Facility in Detroit, Michigan, dated and effective as of December 16, 1985, as amended by an Amendment thereto made and entered into as of February 24, 1989, a Second Amendment thereto made and entered into as of July 1, 1989, and a Third Amendment thereto between the Authority and C-E, as assigned to any assumed by the Corporation pursuant to the First Novation Agreement; (iv) the Amended and Restated Agreement for Management, Operation and Maintenance of Solid Waste Disposal, Resource Recovery and Energy Generating Facility in Detroit, Michigan, dated and effective as of December 16, 1985, as amended by a First Amendment thereto made and entered into as of July 1, 1989 and a Second Amendment thereto, between the Authority and C-E (the "Operating Agreement"), as assigned to and assumed by the Corporation pursuant to the First Novation Agreement; (v) Supplements Nos. 1 and 2 to the Operating Agreement; (vi) the Energy Purchase Agreement, dated December 16, 1985, between C-E and The Detroit Edison Company, as amended by a First Amendment thereto dated April 4, 1986 as amended by a First Amendment thereto dated April 4, 1986 and a Second Amendment thereto, as assigned to and assumed by the Corporation pursuant to the Second Novation Agreement and such other Energy Purchase Agreements (as defined in the Operating Agreement) as the Corporation may enter into for the sale of steam and energy; (vii) two separate Participation Agreements, each dated as of September 1, 1991, (a) among the Corporation, C-E, the Authority, Resource Recovery Business Trust 1991-A, William J. Wade and the Owner Participant named therein and (b) among the Corporation, C-E, the Authority, Resource Recovery Business Trust 1991-B, William J. Wade, the Owner Participant named therein and; (viii) two separate Lease Agreements, between the Corporation and each of the Trusts; (ix) two separate Lessee Security Agreements, between the Corporation and each of the Trusts; (b) the amendment, supplement or modification of any of the agreements listed in clause (a) above and the performance of such agreements, as amended; (c) the activities contemplated by said agreements and instruments; and (d) all such other activities as are necessary in connection with the organization and continued corporate existence. 2 4. The total number of shares of stock that the Corporation is authorized to issue is 1,000 shares of Common Stock, par value $1.00 each. 5. The directors of the Corporation shall not be authorized to commence a voluntary case under the Federal Bankruptcy Code or file a petition thereunder unless they shall have received the prior approval of the shareholders of the Corporation. 6. The name and mailing address of the sole incorporator is Jonathan A. Glick, 180 Maiden Lane, 34th Floor, New York, NY 10038. 7. The Board of Directors of the Corporation, acting by majority vote, may make, alter, amend or repeal the By-Laws of the corporation. 8. Election of directors need not be by written ballot. 9. All rights to vote and all voting power shall be exclusively vested in the Common Stock. 10. The Corporation shall have perpetual existence. 11. Except as otherwise provided by the Delaware General Corporation Law as the same exists or may hereafter be amended, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Any repeal or modification of this paragraph 11 by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. IN WITNESS WHEREOF, the undersigned has signed this Certificate of Incorporation on September 13, 1991. /s/ Jonathan A. Olick ----------------------------- Sole Incorporator 3 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF MICHIGAN WASTE ENERGY, INC. The undersigned, MICHIGAN WASTE ENERGY, INC., a corporation organized and existing under and pursuant to the provisions of the Delaware General Corporation Law, hereby certifies pursuant to Section 242 thereof that: 1. Paragraph 3 of the Certificate of Incorporation of the Corporation is hereby amended to read as follows: "3. The Corporation shall not engage in any activities other than: (a) the execution and delivery of, and the performance of its obligations under, (i) two separate Participation Agreements, each dated as of September 1, 1991 (a) among the Corporation, Combustion Engineering, Inc. ("C-E"), Greater Detroit Resource Recovery Authority (the "Authority"), Resource Recovery Business Trust 1991-A, PMCC Leasing Corp., Wilmington Trust Company and William J. Wade and (b) among the Corporation, C-E, the Authority, Resource Recovery Business Trust 1991-B, Aircraft Services Corporation, Wilmington Trust Company and William J. Wade. (ii) the Construction Agreement and Operating Agreement Assignment and Assumption and Guarantee Agreement (the "Construction and Operating Agreement Assignment and Assumption and Guarantee") among the Corporation, C-E and the Authority; (iii) the Energy Purchase Agreement Assignment and Assumption and Guarantee Agreement (the "Energy Purchase Agreement Assignment and Assumption and Guarantee") among the Corporation, C-E and The Detroit Edison Company; (iv) the Amended and Restated Agreement for Design, Engineering, Construction, Start Up and Testing of Solid Waste Disposal, Resource Recovery and Energy Generating Facility in Detroit, Michigan, dated 4 and effective as of December 16, 1985, as amended by an Amendment thereto made and entered into as of February 24, 1989, a Second Amendment thereto made and entered into as of July 1, 1989, and a Third Amendment thereto between the Authority and C-E, as assigned to and assumed by the Corporation pursuant to the Construction and Operating Agreement Assignment and Assumption and Guarantee; (v) the Amended and Restated Agreement for Management, Operation and Maintenance of Solid Waste Disposal, Resource Recovery and Energy Generating Facility in Detroit, Michigan, dated and effective as of December 16, 1985, as amended by a First Amendment thereto made and entered into as of July 1m 1989 and a Second Amendment thereto, between the Authority and C-E (the "Operating Agreement"), as assigned to and assumed by the Corporation pursuant to the Construction and Operating Agreement Assignment and Assumption and Guarantee; (vi) Supplements Nos. 1 and 2 to the Operating Agreement; (vii) the Energy Purchase Agreement, dated December 16, 1985 between C-E and The Detroit Edison Company, as amended by a First Amendment thereto dated April 4, 1986, and an Amended and Restated Energy Purchase Agreement, as assigned to and assumed by the Corporation pursuant to the Energy Purchase Agreement Assignment and Assumption and Guarantee, and such other Energy Purchase Agreements (as defined in the Operating Agreement) as the Corporation may enter into for the sale of steam and energy; (viii) two separate Lease Agreements, between the Corporation and each of the Trusts; (ix) two separate Lessee Security Agreements, between the Corporation and each of the Trusts; (b) the amendment, supplement or modification of any of the agreements listed in clause (a) above and the performance of such agreements, as amended; (c) the activities contemplated by said agreements and instruments; and 5 (d) all such other activities as are necessary in connection with its organization and continued corporate existence." 2. This Certificate of Amendment of Certificate of Incorporation of the Corporation was approved by the stockholder of the Corporation by Written Consent of Sole Stockholder dated October 9, 1991. IN WITNESS WHEREOF, MICHIGAN WASTE ENERGY, INC. has caused this Certificate of Amendment of Certificate of Incorporation to be signed by its Executive Vice President and attested by its Secretary this 9th day of October, 1991. /s/ Victor N. Lopiano ---------------------------- Executive Vice President Attests: /s/ Peter L. Hess - ------------------------ Secretary 6 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF MICHIGAN WASTE ENERGY, INC. The undersigned, MICHIGAN WASTE ENERGY, INC., a corporation organized and existing under and pursuant to the provisions of the Delaware General Corporation Law, hereby certifies pursuant to Section 242 thereof that: 1. Paragraph 3 of the Certificate of Incorporation of the Corporation is hereby amended to read as follows: "3. The Corporation shall not engage in any activities other than: (a) the execution and delivery of, and the performance of its obligations under, (i) two separate Participation Agreements, each dated as of September 1, 1991 (a) among the Corporation, Combustion Engineering, Inc. ("C-E"), Greater Detroit Resource Recovery Authority (the "Authority"), Resource Recovery Business Trust 1991-A, PMCC Leasing Corp., Wilmington Trust Company and William J. Wade and (b) among the Corporation, C-E, the Authority, Resource Recovery Business Trust 1991-B, Aircraft Services Corporation, Wilmington Trust Company and William J. Wade; (ii) the Construction Agreement and Operating Agreement Assignment and Assumption and Guarantee Agreement (the "Construction and Operating Agreement Assignment and Assumption and Guarantee") among the Corporation, C-E and the Authority; (iii) the Energy Purchase Agreement Assignment and Assumption and Guarantee Agreement (the "Energy Purchase Agreement Assignment and Assumption and Guarantee") among the Corporation, C-E and The Detroit Edison Company; (iv) the Amended and Restated Agreement for Design, Engineering, Construction, Start Up and Testing of Solid Waste Disposal, Resource Recovery and Energy Generating Facility in Detroit, Michigan, dated 7 and effective as of December 16, 1985, as amended by an Amendment thereto made and entered into as of February 24, 1989, a Second Amendment thereto made and entered into as of July 1, 1989, and a Third Amendment thereto between the Authority and C-E, as assigned to and assumed by the Corporation pursuant to the Construction and Operating Agreement Assignment and Assumption and Guarantee; (v) the Amended and Restated Agreement for Management, Operation and Maintenance of Solid Waste Disposal, Resource Recovery and Energy Generating Facility in Detroit, Michigan, dated and effective as of December 16, 1985, as amended by a First Amendment thereto made and entered into as of July 1, 1989 and a Second Amendment thereto, between the Authority and C-E (the "Operating Agreement"), as assigned to and assumed by the Corporation pursuant to the Construction and Operating Agreement Assignment and Assumption and Guarantee; (vi) Supplements Nos. 1 and 2 to the Operating Agreement; (vii) the Energy Purchase Agreement, dated December 16, 1985 between C-E and The Detroit Edison Company, as amended by a First Amendment thereto dated April 4, 1986, an Amended and Restated Energy Purchase Agreement between C-E and The Detroit Edison Company, and the Escrow Agreement between C-E and the Detroit Edison Company as assigned to and assumed by the Corporation pursuant to the Energy Purchase Agreement Assignment and Assumption and Guarantee, and such other Energy Purchase Agreements (as defined in the Operating Agreement) as the Corporation may enter into for the sale of steam and energy; (viii) the Extension Agreement among The Detroit Edison Company, the Authority, each of the Trusts and the Corporation; (ix) two separate Lease Agreements, between the Corporation and each of the Trusts; and (x) two separate Lessee Security Agreements, between the Corporation and each of the Trusts; 8 (b) the amendment, supplement or modification of any of the agreements listed in clause (a) above and the performance of such agreements, as amended; (c) the activities contemplated by said agreements and instruments, including the execution, delivery and performance of such agreements and instruments as may be attached as exhibits to any of the agreements listed in Section 3(a) hereof or as may be contemplated by any of such agreements; and (d) all such other activities as are necessary in connection with the organization and continued corporate existence." 2. This Certificate of Amendment of Certificate of Incorporation of the Corporation was approved by the stockholder of the Corporation by Written Consent of Sole Stockholder dated October 9, 1991. 9 IN WITNESS WHEREOF, MICHIGAN WASTE ENERGY, INC. has caused this Certificate of Amendment of Certificate of Incorporation to be signed by its Executive Vice President and attested by its Secretary this 17th day of October, 1991. MICHIGAN WASTE ENERGY, INC. /s/ Victor N. Lopiano ---------------------------- Executive Vice President Attests: /s/ Peter L. Hess - ----------------------------- Secretary Peter L. Hess 10 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is MICHIGAN WASTE ENERGY, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington, 19805, Country of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/10, 199_ /s/ ----------------------- Authorized Officer 11 EX-99.T3B2 80 exhibit_t3b-2.txt 041989/A4455z Exhibit T3B-2 BY - LAWS OF AMOR 14 CORPORATION SECTION 1. OFFICES The principal office of the corporation shall be located at the principal place of business or such other place as the Board of Directors ("Board") may designate. The corporation may have such other offices, either within or without the State of Delaware, as the Board may designate or as the business of the corporation may require from time to time. SECTION 2. STOCKHOLDERS 2.1 Annual Meeting. The annual meeting of the stockholders shall be held the first Tuesday in March in each year for the purpose of electing Directors and transacting such other business as may properly come before the meeting. If the day fixed for the annual meeting is a legal holiday at the place of the meeting, the meeting shall be held on the next succeeding business day. If the annual meeting is not held on the date designated therefor, the Board shall cause the meeting to be held as soon thereafter as may be convenient. 2.2 Special Meetings. The Chairman of the Board, the President, the Board, or the holders of not less than one -- tenth of all the outstanding shares of the corporation entitled to vote at the meeting, may call special meetings of the for any purpose. 2.3 Place of Meeting. All meetings shall be held at the principal office of the corporation or at such other place within or without the State of Delaware designated by the Board, by any persons entitled to call a meeting hereunder or in a waiver of notice signed by all of the stockholders entitled to notice of the meeting. 2.4 Notice of Meeting. The Chairman of the Board, the President, the Secretary, the Board, or stockholders calling an annual or special meeting of stockholders as provided for 1 041989/A4455z Exhibit T3B-2 herein, shall cause to be delivered to each stockholder entitled to notice of or to vote at the meeting either personally or by mail, not less than ten nor more than sixty days before the meeting, written notice stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. At any time, upon written request of the holders of not less than one - tenth of all of the outstanding shares of the corporation entitled to vote at the meeting, it shall be the duty of the Secretary to give notice of a special meeting of stockholders to be held on such date and at such place and hour as the Secretary may fix, not less than ten nor more than thirty - five days after receipt of said request, and if the Secretary shall neglect or refuse to issue such notice, the person making the request may do so and may fix the date for such meeting. If such notice is mailed, it shall be deemed delivered when deposited in the official government mail properly addressed to the stockholder at his or her address as it appears on the stock transfer books of the corporation with postage prepaid. If the notice is telegraphed, it shall be deemed delivered when the content of the telegram is delivered to the telegraph company. 2.5 Waiver of Notice. 2.5.1 Whenever any notice is required to be given to any stockholder under the provisions of these By-Laws, the Certificate of Incorporation or the General Corporation Law of Delaware, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. 2.5.2 The attendance of a stockholder at a meeting shall constitute a waiver of notice of such meeting,~ except when a stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. 2.6 Fixing of Record Date for Determining Stockholders. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or stockholders entitled to receive 2 041989/A4455z Exhibit T3B-2 payment of any dividend, or in order to make a determination of stockholders for any other purpose, the Board may fix in advance a date as the record date for any such determination. Such record date shall be not more than sixty days, and in case of a meeting of stockholders not less than ten days, prior to the date on which the particular action requiring such determination is to be taken. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto. Such a determination shall apply to any adjournment of the meeting. 2.7 Voting List. At least ten days before each meeting of stockholders, a complete list of the stockholders entitled to vote at such meeting, or any adjournment thereof, shall be made, arranged in alphabetical order, with the address of and number of shares held by each stockholder. This list shall be kept open at such meeting for the inspection of any stockholder and shall also be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. 2.8 Quoroum. A majority of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of the stockholders. If less than a majority of the outstanding shares entitled to vote are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. If a quorum is present or represented at a reconvened meeting following such an adjournment, any business may be transacted that might have been transacted at the meeting as originally called. The stockholders present at a duly organized meeting may continue to transact business until 3 041989/A4455z Exhibit T3B-2 adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. 2.9 Manner of Acting. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the vote of a greater number is required by these By - Laws, the Certificate of Incorporation or the General Corporation Law of Delaware. 2.10 Proxies. A stockholder may vote by proxy executed in writing by the stockholder or by his or her attorney - in - fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. A proxy shall become invalid three years after the date of its execution, unless otherwise provided in the proxy. A proxy with respect to a specified meeting shall entitle the holder thereof to vote at any reconvened meeting following adjournment of such meeting but shall not be valid after the final adjournment thereof. 2.11 Voting of Shares. Each outstanding share entitled to vote with respect to the subject matter of an issue submitted to a meeting of stockholders shall be entitled to one vote upon each such issue. 2.12 Voting for Directors. Each stockholder entitled to vote at an election of Directors may vote, in person or by proxy, the number of shares owned by such stockholder for as many persons as there are Directors to be elected and for whose election such stockholder has a right to vote, or if the Certificate of Incorporation provides for cumulative voting, each stockholder may cumulate his or her votes by distributing among one or more candidates as many votes as are equal to the number of such Directors multiplied by the number of his or her shares. 2.13 Action by Stockholders Without a Meeting. Any action which could be taken at a meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a written consent setting forth the action so taken is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize 4 041989/A4455z Exhibit T3B-2 or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Any such consent shall be inserted in the minute book as if it were the minutes of a meeting of the stockholders. SECTION 3. BOARD OF DIRECTORS 3.1 General Powers. The business and affairs of the corporation shall be managed by the Board. 3.2 Number and Tenure. The Board shall be composed of not less than one nor more than six Directors, the specific number to be set by resolution of the Board. The number of Directors may be changed from time to time by amendment to these By - Laws, but no decrease in the number of Directors shall have the effect of shortening the term of any incumbent Director. Unless a Director dies, resigns, or is removed, he or she shall hold office until the next annual meeting of stockholders or until his or her successor is elected, whichever is later. Directors need not be stockholders of the corporation or residents of the State of Delaware. 3.3 Annual and Regular Meetings. An annual Board meeting shall be held without notice immediately after and at the same place as the annual meeting of stockholders. By resolution, the Board or any committee designated by the Board may specify the time and place either within or without the State of Delaware for holding regular meetings thereof without other notice than such resolution. 3.4 Special Meetings. Special meetings of the Board or any committee appointed by the Board may be called by or at the request of the Chairman of the Board, the President, the Secretary or, in the case of special Board meetings, any one Director and, in the case of any special meeting of any committee appointed by the Board, by the chairman thereof. The person or persons authorized to call special meetings may fix any place either within or without the State of Delaware as the place for holding any special Board or committee meeting called by them. 5 041989/A4455z Exhibit T3B-2 3.5 Meetings by Telephone. Members of the Board or any committee designated by the Board may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation by such means shall constitute presence in person at a meeting. 3.6 Notice of Special Meetings. Notice of a special Board or committee meeting stating the place, day and hour of the meeting shall be given to a Director in writing or orally by telephone or in person. Neither the business to be transacted at, nor the purpose of, any special meeting need be specified in the notice of such meeting. 3.6.1 Personal Delivery. If notice is given by personal delivery, the notice shall be effective if delivered to a Director at least two days before the meeting. 3.6.2 Delivery by Mail. If notice is delivered by mail, the notice shall be deemed effective if deposited in the official government mail properly addressed to a Director at his or her address shown on the records of the corporation with postage prepaid at least five days before the meeting. 3.6.3 Delivery by Telegraph. If notice is delivered by telegraph, the notice shall be deemed effective if the content thereof is delivered to the telegraph company for delivery to a Director at his or her address shown on the records of the corporation at least three days before the meeting. 3.6.4 Oral Notice. If notice is delivered orally, by telephone or in person, the notice shall be deemed effective if personally given to the Director at least two days before the meeting. 3.7 Waiver of Notice. 3.7.1 In Writing. Whenever any notice is required to be given to any Director under the provisions of these By - Laws, the Certificate of Incorporation or the General Corporation Law of Delaware, a waiver thereof in writing, signed 6 041989/A4455z Exhibit T3B-2 by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any regular committee appointed by the Board need be specified in the waiver of notice of such meeting. 3.7.2 By Attendance. The attendance of a Director at a Board or committee meeting shall constitute a waiver of notice of such meeting, except when a Director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. 3.8 Quorum. A majority of the total number of Directors fixed by or in the manner provided in these By - Laws shall constitute a quorum for the transaction of business at any Board meeting but, if less than a majority are present at a meeting, a majority of the Directors present may adjourn the meeting from time to time without further notice. 3.9 Manner of Acting. The act of the majority of the Directors present at a Board meeting at which there is a quorum shall be the act of the Board, unless the vote of a greater number is required by these By - Laws, the Certificate of Incorporation or the General Corporation Law of Delaware. 3.10 Presumption of Assent. A Director of the corporation present at a Board or committee meeting at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his or her dissent is entered in the minutes of the meeting, or unless such Director files a written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof, or forwards such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. A Director who voted in favor of such action may not dissent. 3.11 Action by Board or Committees Without a Meeting. Any action which could be taken at a meeting of the Board or of any committee appointed by the Board may be taken without a meeting if a written consent setting forth the action so taken is signed by each of the Directors or by each committee member. 7 041989/A4455z Exhibit T3B-2 Any such written consent shall be inserted in the minute book as if it were the minutes of a Board or a committee meeting. 3.12 Resignation. Any Director may resign at any time by delivering written notice to the Chairman of the Board, the President, the Secretary or the Board, or to the registered office of the corporation. Any such resignation shall take effect at the time specified therein, or if the time is not specified, upon delivery thereof and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 3.13 Removal. At a meeting of stockholders called expressly for that purpose, one or more members of the Board (including the entire Board) may be removed, with or without cause, by a vote of the holders of a majority of the shares then entitled to vote on the election of Directors. If the Certificate of Incorporation provides for cumulative voting in the election of Directors, then if less than the entire Board is to be removed, no one of the Directors may be removed if the votes cast against his or her removal would be sufficient to elect such Director if then cumulatively voted at an election of the entire Board. 3.14 Vacancies. Any vacancy occurring on the Board may be filled by the affirmative vote of a majority of the remaining Directors though less than a quorum of the Board. A Director elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office. Any directorship to be filled by reason of an increase in the number of Directors may be filled by the Board. 3.15 Executive and Other Committees. 3.15.1 Creation and Authority of Committees. The Board may, by resolution passed by a majority of the number of Directors fixed by or in the manner provided in these By - Laws, appoint standing or temporary committees, including an Executive Committee, each committee to consist of one or more Directors of the corporation, and invest such committees with such powers as it may see fit, subject to such conditions as may be prescribed by the Board and by applicable law; but no such committee shall have the power or authority of the Board in reference to (a) 8 041989/A4455z Exhibit T3B-2 amending the Certificate of Incorporation, (b) adopting a plan of merger or consolidation, (c) recommending to the stockholders the sale, lease or exchange or other disposition of all or substantially all of the property and assets of the corporation other than in the usual and regular course of business, (d) recommending to the stockholders a voluntary dissolution or a revocation thereof, (e) amending these By - Laws, (f) declaring a dividend, or (g) authorizing the issuance of stock. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members of the Board to act at the meeting in the place of any such absent or disqualified member. 3.15.2 Minutes of Meetings. All committees so appointed shall keep regular minutes of their meetings and shall cause them to be recorded in books kept for that purpose. 3.15.3 Quorum and Manner of Acting. A majority of the number of Directors composing any committee of the Board, as established and fixed by resolution of the Board, shall constitute a quorum for the transaction of business at any meeting of such committee but, if less than a majority are present at a meeting, a majority of such Directors present may adjourn the meeting from time to time without further notice. The act of a majority of the members of a committee present at a meeting at which a quorum is present shall be the act of such committee. 3.15.4 Resignation. Any member of any committee may resign at any time by delivering written notice thereof to the Chairman of the Board, the President, the Secretary, the Board or the Chairman of such committee. Any such resignation shall take effect at the time specified therein, or if the time is not specified, upon delivery thereof and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 3.15.5 Removal. The Board may remove from office any member of any committee elected or appointed by it or by an 9 041989/A4455z Exhibit T3B-2 Executive Committee, but only by the affirmative vote of not less than a majority of the number of Directors fixed by or in the manner provided in these By - Laws. 3.16 Compensation. By Board resolution, Directors and committee members may be paid their expenses, if any, of attendance at each Board or committee meeting, or a fixed sum for attendance at each Board or committee meeting, or a stated salary as Director or a committee member, or a combination of the foregoing. No such payment shall preclude any Director or committee member from serving the corporation in any other capacity and receiving compensation therefor. SECTION 4. OFFICERS 4.1 Number. The officers of the corporation shall be a President, a Secretary and a Treasurer, each of whom shall be elected by the Board. One or more Vice Presidents and such other officers and assistant officers, including a Chairman of the Board, may be elected or appointed by the Board, such officers and assistant officers to hold office for such period, have such authority and perform such duties as are provided in these By - Laws or as may be provided by resolution of the Board. Any officer may be assigned by the Board any additional title that the Board deems appropriate. The Board may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authority and duties. Any two or more offices may be held by the same person. 4.2 Election and Term of Office. The officers of the corporation shall be elected annually by the Board at the Board meeting held after the annual meeting of the stockholders. If the election of officers is not held at such meeting, such election shall be held as soon thereafter as a Board meeting conveniently may be held. Unless an officer dies, resigns, or is removed from office, he or she shall hold office until the next annual meeting of the Board or until his or her successor is elected. 4.3 Resignation. Any officer may resign at any time by delivering written notice to the Chairman of the Board, the President, a Vice President, the Secretary or the Board. Any 10 041989/A4455z Exhibit T3B-2 such resignation shall take effect at the time specified therein, or if the time is not specified, upon delivery thereof and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 4.4 Removal. Any officer or agent elected or appointed by the Board may be removed by the Board whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. 4.5 Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, creation of a new office or any other cause may be filled by the Board for the unexpired portion of the term, or for a new term established by the Board. 4.6 Chairman of the Board. If elected, the Chairman of the Board shall perform such duties as shall be assigned to him or her by the Board from time to time and shall preside over meetings of the Board and stockholders unless another officer is appointed or designated by the Board as Chairman of such meeting. 4.7 President. The President shall be the chief executive officer of the corporation unless some other officer is so designated by the Board, shall preside over meetings of the Board and stockholders in the absence of a Chairman of the Board, and, subject to the Board's control, shall supervise and control all of the assets, business and affairs of the corporation. The President may sign certificates for shares of the corporation, deeds, mortgages, bonds, contracts or other instruments, except when the signing and execution thereof have been expressly delegated by the Board or by these By - Laws to some other officer or agent of the corporation or are required by law to be otherwise signed or executed by some other officer or in some other manner. In general, the President shall perform all duties incident to the office of President and such other duties as are prescribed by the Board from time to time. 4.8 Vice President. In the event of the death of the President or his or her inability to act, the Vice President (or if there is more than one Vice President, the Vice President who 11 041989/A4455z Exhibit T3B-2 was designated by the Board as the successor to the President, or if no Vice President is so designated, the Vice President first elected to such office) shall perform the duties of the President, except as may be limited by resolution of the Board, with all the powers of and subject to all the restrictions upon the President. Any Vice President may sign with the Secretary or any Assistant Secretary certificates for shares of the corporation. Vice Presidents shall have, to the extent authorized by the President or the Board, the same powers as the President to sign deeds, mortgages, bonds, contracts or other instruments. Vice Presidents shall perform such other duties as from time to time may be assigned to them by the President or by the Board. 4.9 Secretary. The Secretary shall: (a) keep the minutes of meetings of the stockholders and the Board in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and seal of the corporation; (d) keep registers of the post office address of each stockholder and Director; (e) sign certificates for shares of the corporation; (f) have general charge of the stock transfer books of the corporation; (g)sign, with the President or other officer authorized by the President or the Board, deeds, mortgages, bonds, contracts or other instruments; and (h) in general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him or her by the President or by the Board. In the absence of the Secretary, an Assistant Secretary may perform the duties of the Secretary. 4.10 Treasurer. If required by the Board, the Treasurer shall give a bond for the faithful discharge of his or her duties in such amount and with such surety or sureties as the Board shall determine. The Treasurer shall have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for moneys due and payable to the corporation from any source whatsoever; and deposit all such moneys in the name of the corporation in banks, trust companies or other depositories selected in accordance with the provisions of these By - Laws; sign certificates for shares of the corporation; and in general perform all of the duties incident to the office of Treasurer and such other duties 12 041989/A4455z Exhibit T3B-2 as from time to time may be assigned to him or her by the President or by the Board. In the absence of the Treasurer, an Assistant Treasurer may perform the duties of the Treasurer. 4.11 Salaries. The salaries of the officers shall be fixed from time to time by the Board or by any person or persons to whom the Board has delegated such authority. No officer shall be prevented from receiving such salary by reason of the fact that be or she is also a Director of the corporation. SECTION 5. CONTRACTS, LOANS, CHECKS AND DEPOSITS 5.1 Contracts. The Board may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation. Such authority may be general or confined to specific instances. 5.2 Loans to the Corporation. No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board. Such authority may be general or confined to specific instances. 5.3 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, or agent or agents, of the corporation and in such manner as is from time to time determined by resolution of the Board. 5.4 Deposits. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the Board may select. SECTION 6. CERTIFICATES FOR SHARES AND THEIR TRANSFER 6.1 Issuance of Shares. No shares of the corporation shall be issued unless authorized by the Board, which authorization shall include the maximum number of shares to be issued and the consideration to be received for each share. 13 041989/A4455z Exhibit T3B-2 6.2 Certificates for Shares. Certificates representing shares of the corporation shall be signed by the Chairman or Vice Chairman of the Board or the President or the Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary. Any of or all the signatures on the certificate may be a facsimile. All certificates shall include on their face written notice of any restrictions which may be imposed on the transferability of such shares and shall be consecutively numbered or otherwise identified. 6.3 Stock Records. The stock transfer books shall be kept at the registered office or principal place of business o~ the corporation or at the office of the corporation's transfer agent or registrar. The name and address of each person to whom certificates for shares are issued, together with the class and number of shares represented by each such certificate and the date of issue thereof, shall be entered on the stock transfer books of the corporation. The person in whose name shares stand on the books of the corporation shall be deemed by the corporation to be the owner thereof for all purposes. 6.4 Restriction on Transfer. Except to the extent that the corporation has obtained an opinion of' counsel acceptable to the corporation that transfer restrictions are not required under applicable securities laws, or has otherwise satisfied itself that such transfer restrictions are not required, all certificates representing shares of the corporation shall bear a legend on the face of the certificate, or on the reverse of the certificate if a reference to the legend is contained on the face, which reads substantially as follows: "The securities evidenced by this certificate have not been registered under the Securities Act of 1933, or any applicable state law, and no interest therein may be sold, distributed, assigned, offered, pledged or otherwise transferred unless (a) there is an effective registration statement under such Act and applicable state securities laws covering any such transaction involving said securities or (b) this corporation receives an opinion of legal counsel for the holder of these securities (concurred in by legal counsel for this corporation) stating that such 14 041989/A4455z Exhibit T3B-2 transaction is exempt -from registration or this corporation otherwise satisfies itself that such transaction is exempt from registration. Neither the offering of the securities nor any offering materials have been reviewed by any administrator under the Securities Act of 1933 or any applicable state law." 6.5 Transfer of Shares. The transfer of shares of the corporation shall be made only on the stock transfer books of the corporation pursuant to authorization or document of transfer made by the holder of record thereof or by his or her legal representative, who shall furnish proper evidence of authority to transfer, or by his or her attorney - in - fact authorized by power of attorney duly executed and filed with the Secretary of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificates for a like number of shares shall have been surrendered and cancelled. 6.6 Lost or Destroyed Certificates. In the case of a lost, destroyed or mutilated certificate, a new certificate may be issued therefor upon such terms and indemnity to the corporation as the Board may prescribe. SECTION 7. BOOKS AND RECORDS The corporation shall keep correct and complete books and records of account, stock transfer books, minutes of the proceedings of its stockholders and Board and such other records as may be necessary or advisable. SECTION 8. ACCOUNTING YEAR The accounting year of the corporation shall be the calendar year, provided that if a different accounting year is at any time selected for purposes of federal income taxes, the accounting year shall be the year so selected. SECTION 9. SEAL The seal of the corporation shall consist of the name of the corporation, the state of its incorporation and the year of its incorporation. 15 041989/A4455z Exhibit T3B-2 SECTION 10. INDEMNIFICATION 10.1 Right to Indemnification. Each person who, was or is made a party or is threatened to be made a party to or is otherwise involved (including, without limitation, as a witness) in any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she is or was a Director or officer of the corporation or that, being or having been such a Director or officer or an employee of the corporation, he or she is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as such a director, officer, employee or agent or in any other capacity while serving as such a director, officer, employee or agent, shall be indemnified and held harmless by the corporation to the full extent permitted by the General Corporation Law of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than permitted prior thereto), or by other applicable law as then in effect, against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) actually and reasonably incurred or suffered by such indemnitee in connection therewith and such indemnification shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the indemnitee's heirs, executors and administrators; provided, however, that except as provided in subsection 10.2 of this Section with respect to proceedings seeking to enforce rights to indemnification, the corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized or ratified by the Board. The right to indemnification conferred in this subsection 10.1 shall be a contract right and shall include the right to be paid by the corporation the expenses incurred in as defending any such proceeding in advance of its final disposition (hereinafter an "advancement of expenses"), provided, however, that if the 16 041989/A4455z Exhibit T3B-2 General Corporation Law of Delaware requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such indemnitee is not entitled to be indemnified for such expenses under this subsection 10.1 or otherwise. 10.2 Right of Indemnitee to Bring Suit. If a claim under subsection 10.1 of this Section is not paid in full by the corporation within sixty days after a written claim has been received by the corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty days, the indemnitee may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. The indemnitee shall be presumed to be entitled to indemnification under this Section upon submission of a written claim (and, in an action brought to enforce a claim for an advancement of expenses, where the required undertaking, if any is required, has been tendered to the corporation), and thereafter the corporation shall have the burden of proof to overcome the presumption that the indemnitee is not so entitled. Neither the failure of the corporation (including its Board, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances nor an actual determination by the corporation (including its Board, independent legal counsel or its stockholders) that the indemnitee is not entitled to indemnification shall be a defense to the suit or create a presumption that the indemnitee is not so entitled. 10.3 Nonexclusivity of Rights. The rights to indemnification and to the advancement of expenses conferred in 17 041989/A4455z Exhibit T3B-2 this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, agreement, vote of stockholders or disinterested Directors, provisions of the Certificate of Incorporation or By - Laws of the corporation or of Ormat Energy Systems, Inc. or otherwise. 10.4 Insurance, Contracts and Funding. The corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of Delaware. The corporation, without further stockholder approval, may enter into contracts with any director, officer, employee or agent in furtherance of the provisions of this Section and may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in this Section. 10.5 Indemnification of Employees and Agents of the Corporation. The corporation may, by action of the Board, grant rights to indemnification and advancement of expenses to employees or agents or groups of employees or agents of the corporation with the same scope and effect as the provisions of this Section with respect to the indemnification and advancement of expenses of Directors and officers of the corporation; provided, however, that an undertaking shall be made by an employee or agent only if required by the Board. 10.6 Persons Serving Other Entities. Any person who is or was a Director, officer or employee of the corporation who is or was serving (a) as a director or officer of another corporation of which a majority of the shares entitled to vote in the election of its directors is held by the corporation or (b) in an executive or management capacity in a partnership, joint venture, trust or other enterprise of which the corporation or a wholly owned subsidiary of the corporation is a general partner or has a majority ownership shall be deemed to be so serving at the request of the corporation and entitled to 18 041989/A4455z Exhibit T3B-2 indemnification and advancement of expenses under subsection 10.1 of this Section. SECTION 11. AMENDMENTS These By - Laws may be amended or repealed and new By - Laws may be adopted by the Board. The stockholders may also amend and repeal these By - - Laws or adopt new By - Laws. All By - Laws made by the Board may be amended or repealed by the stockholders. The foregoing By - Laws were adopted by the Board of Directors on /s/May 23, 1989. ________________________________ Secretary A4455z 19 EX-99.T3B3 81 exhibit_t3b-3.txt Exhibit T3B-3 OGDEN YORKSHIRE ACQUISHION INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware, Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place either within or without the State of Delaware as shall be designated from time to time by the board of directors arid stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held at such date and time as shall be designated from time to time by the board of directors. and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten 1 Exhibit T3B-3 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or 2 Exhibit T3B-3 represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than six. The first board shall consist of six directors, Thereafter, within the limits above specified, the number of 3 Exhibit T3B-3 directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, In the event of the failure 4 Exhibit T3B-3 of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on three days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons 5 Exhibit T3B-3 participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. 6 Exhibit T3B-3 COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of Incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. 7 Exhibit T3B-3 Section 12. Each committee shall keep regular minutes of its meetings and report `the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum f or attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefore. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether 8 Exhibit T3B-3 before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, 9 Exhibit T3B-3 except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice -presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 10 Exhibit T3B-3 THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may front time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof arid the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile, In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. 11 Exhibit T3B-3 LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed, When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or f or the purpose of any other lawful action, the board of directors may fix, iii advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other 12 Exhibit T3B-3 action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. 13 Exhibit T3B-3 REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there tray be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or f or such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. 14 Exhibit T3B-3 CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors, SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by- laws be contained in the notice of such special meeting, If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 15 EX-99.T3B4 82 exhibit_t3b-4.txt EXHIBIT T3B-4 OGDEN YORKSHIRE WATER OF BESSEMER, INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation nay require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders (euro)or the election of directors shall be held in the City of Fairfield, State of New Jersey, at such place as nay be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1995, shall be held at such date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than 10 nor more than 60 days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all! meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified, If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than 3 nor more than 5. The first board shall consist of 3 directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on 10 days' notice to each director, either personally or by mail or by facsimile communication; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors nay also be given by facsimile telecommunication. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors nay also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. Section 10. The vice-presidents., or if there shall be more than one, the vice--presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that: purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. >> Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal nay be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. EX-99.T3B5 83 exhibit_t3b-5.txt Exhibit T3B-5 CUNNINGHAM ENVIRONMENTAL SUPPORT, INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The office of the corporation shall be located in New York, New York. Section 2. The corporation may also have offices at such other places both within and without the State of New York as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders, commencing with the year 1996, shall be held on such date and at such time as may be fixed from time to time by the board of 1 Exhibit T3B-5 directors, at which they shall elect by a plurality vote, a board of meeting. Section 3. Written or printed notice of the annual meeting stating the place, date and hour of the meeting shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders may be held at such time and place within or without the State of New York as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president, the board of directors, or the holders of not less than majority% of all the shares entitled to vote at the meeting. Section 3. Written or printed notice of a special meeting stating the place, date and hour of the meeting and the 2 Exhibit T3B-5 purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by, or at the direction of, the president, the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. The notice should also indicate that it is being issued by, or at the direction of, the person calling the meeting. Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. The holders of a majority of the shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or 3 Exhibit T3B-5 represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders, unless the vote of a greater or lesser number of shares of stock is required by law or the certificate of incorporation. Section 3. Each outstanding share of stock having voting power shall be entitled to one vote on each mailer submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Section 4. The board of directors in advance of any shareholders' meeting may appoint one or more inspectors to act at the meeting or any adjournment thereof. If inspectors are not so appointed, the person presiding at a shareholders' meeting may, and, on the request of any shareholder entitled to vote thereat, shall appoint one or more inspectors. In case any person appointed as inspector fails to appear or act, the vacancy may be filled by the board in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, 4 Exhibit T3B-5 before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. Section 5. Whenever shareholders are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all outstanding shares entitled to vote thereon. ARTICLE V DIRECTORS Section 1. The number of directors shall be a minimum of 3 and a maximum of 6. Directors shall be at least eighteen years of age and need not be residents of the State of New York nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, except as hereinafter provided, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. 5 Exhibit T3B-5 Section 2. Any or all of the directors may be removed, with or without cause, at any time by the vote of the shareholders at a special meeting called for that purpose. Any director may be removed for cause by the action of the directors at a special meeting called for that purpose. Section 3. Newly created directorships resulting from an increase in the board of directors and all vacancies occurring in the board shall be filled by election at an annual meeting, or at a special meeting of shareholders called for that purpose. A director elected to fill a vacancy shall be elected for the unexpired portion of the term of his predecessor in office. A director elected to fill a newly created directorship shall serve until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualified. Section 4. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the shareholders. Section 5. The directors may keep the books of the corporation, except such as are required by law to be kept 6 Exhibit T3B-5 within the state, outside the State of New York, at such place or places as they may from time to time determine. Section 6. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of New York. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such 7 Exhibit T3B-5 time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on 10 days' notice to each director, either personally or by mail or by facsimile telecommunication special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Notice of a meeting need not be given to any director who submits a signed waiver of notice whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater or lesser number is required by law or by the certificate of incorporation. The vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the vote of a greater number is required by law or by the certificate of 8 Exhibit T3B-5 incorporation. If a quorum shall not be present at any meeting of directors, the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. Section 8. Unless the certificate of incorporation provides otherwise, any action required or permitted to be taken at a meeting of the directors or a committee thereof may be taken without a meeting if a consent in writing to the adoption of a resolution authorizing the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. 9 Exhibit T3B-5 ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the entire board, may designate, from among its members, an executive committee and other committees, each consisting of three or more directors, and each of which, to the extent provided in the resolution, shall have all the authority of the board, except as otherwise required by law. Vacancies in the membership of the Committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the 10 Exhibit T3B-5 same shall be deposited in the United States mail. Notice to directors may also be given by facsimile telecommunication. Section 2. Whenever any notice of a meeting is required to be given under the provisions of the statutes or under the provisions of the certificate of incorporation or these by-laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Any two or more offices may be held by the same person, except the offices of president and secretary. When all the issued and outstanding stock of the corporation is owned by 11 Exhibit T3B-5 one person, such person may hold all or any combination of offices. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. 12 Exhibit T3B-5 Section 7. He shall execute bonds, mortgages and other contracts requiring a seal under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. The vice-president or, if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties 13 Exhibit T3B-5 as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and, when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary or, if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the 14 Exhibit T3B-5 corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and 15 Exhibit T3B-5 have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates or shall be uncertificated. Certificates shall be signed by the chairman or vice-chairman of the board or the president or a vice-president and the secretary or an assistant secretary or the treasurer or an assistant treasurer of the corporation and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full statement of the designation, relative rights, preferences, and limitations of the shares of each class authorized to be issued and, if the corporation is authorized to issue any class of preferred shares in series, the designation, relative rights, preferences and limitations of each such series so far as the same have been fixed and the authority of the board of directors to designate 16 Exhibit T3B-5 and fix the relative rights, preferences and limitations of other series. Within a reasonable time after the issuance or transfer of any uncertificated shares there shall be sent to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to paragraphs (b) and (c) of Section 508 of the New York Business Corporation Law. Section 2. The signatures of the officers of the corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition 17 Exhibit T3B-5 precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. FIXING RECORD DATE Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action, the board of directors may fix, in advance, a date as the record date for any such determination of shareholders. Such date shall not be more than fifty nor less 18 Exhibit T3B-5 than ten days before the date of any meeting nor more than fifty days prior to any other action. When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof, unless the board fixes a new record date for the adjourned meeting. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of New York. LIST OF SHAREHOLDERS Section 7. A list of shareholders as of the record date, certified by the corporate officer responsible for its preparation or by a transfer agent, shall be produced at any meeting upon the request thereat or prior thereto of any shareholder. If the right to vote at any meeting is challenged, 19 Exhibit T3B-5 the inspectors of election, or person presiding thereat, shall require such list of shareholders to be produced as evidence of the right of the persons challenged to vote at such meeting and all persons who appear from such list to be shareholders entitled to vote thereat may vote at such meeting. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the certificate of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in shares of the capital stock or in the corporation's bonds or its property, including the shares or bonds of other corporations subject to any provisions of law and of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for 20 Exhibit T3B-5 such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, New York". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENT Section 1. These by-laws may be amended or repealed or new by-laws may be adopted at any regular or special meeting of shareholders at which a quorum is present or represented, by the vote of the holders of shares entitled to vote in the election of any directors, provided notice of the proposed 21 Exhibit T3B-5 alteration, amendment or repeal be contained in the notice of such meeting. These by-laws may also be amended or repealed or new by-laws may be adopted by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board. If any by-law regulating an impending election of directors is adopted, amended or repealed by the board, there shall be set forth in the notice of the next meeting of shareholders for the election of directors the by-law so adopted, amended or repealed, together with precise statement of the changes made. By-laws adopted by the board of directors may be amended or repealed by the shareholders. 22 EX-99.T3B6 84 exhibit_t3b-6.txt Exhibit T3B-6 BYLAWS OF OGDEN POWER CORPORATION. ARTICLE I - OFFICE The corporation shall maintain a principal office in the State of Delaware, County of Kent, and may also have an office or offices at such other place or places, either within or without the State of Delaware, as may be designated by the Board of Directors. ARTICLE II - STOCKHOLDERS 1. ANNUAL MEETING An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place on such date, and at such time as the Board of Directors shall each year fix, which date shall be within fourteen (14) months subsequent to the last annual meeting of stockholders. 2. SPECIAL MEETING Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President, by the Board of Directors, or by the holders of not less than ten percent (10%) of the outstanding voting stock of the corporation. The special meeting will then be held on a date established by the President not more than ninety (90) days after the Secretary has notified the Board of Directors. For all special meetings, the President or the Board of Directors shall have the power to determine (within the limitations permitted by law) the form, content, means of communication and timing of notice of such meeting. 3. PLACE OF MEETING The directors may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for meeting or any annual meeting or for any special meeting. A waiver of notice signed by all stockholders entitled to vote at a meeting may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for holding such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation. 4. NOTICE OF MEETING Written or printed notice stating the place, day and hour of the meeting, and accompanied by an agenda of the meeting shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary or the officer or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the stockholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid; provided that written notice of a meeting shall be delivered, as set forth above, not less than twenty (20) days before the date of such meeting if action is to be taken on a plan contemplating merger or consolidation of the corporation with another corporation. 5. QUORUM At any meeting of stockholders, thirty-three and one-half percent (33-1/2%) of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than said number of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time and notice shall be given to all shareholders. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. 6. PROXIES At all meetings of stockholders, a stockholder may vote by proxy executed in writing by the stockholder or by his duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. The Board of Directors, in advance of any annual or special meeting of the shareholders, may prescribe additional regulations concerning the manner of execution and filing of proxies and the validation of the same, which are intended to be voted at any such meeting. 7. VOTING Each stockholder entitled to vote in accordance with the terms and provisions of the Certificate of Incorporation and these Bylaws shall be entitled to one (1) vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder. Upon the demand of any stockholder, the vote for directors and upon any questions before the meeting shall be by ballot. All elections for directors shall be decided by majority vote except as otherwise provided by Certificate of Incorporation or the laws of this State. 8. ORDER OF BUSINESS The order of business at all meetings of the stockholders shall be determined by the Chairman, President, or the Board of Directors. 2 ARTICLE III - BOARD OF DIRECTORS 1. GENERAL POWER The business and affairs of the corporation shall be managed by its Board of Directors. The directors shall in all cases act as a Board. 2. NUMBER, TENURE AND QUALIFICATIONS The number of directors of the corporation shall be not less than three (3) nor more than seven (7). Each director shall hold office until the next annual meeting of stockholders, at which the directors are to be elected, and until his successor shall have been elected and qualified. The actual number of directors shall be established by the Board. 3. REGULAR MEETINGS A regular meeting of the directors shall be held without other notice than this Bylaw immediately after, and at the same place as, the annual meeting of the stockholders. The directors may provide, by resolution, the time and place for the holding of additional regular meetings without other notice than such resolution. 4. SPECIAL MEETINGS Special meetings of the directors may be called by or at the request of the President, Secretary, or any two (2) directors. The person or persons authorized to call special meetings of the directors may fix the place for holding any special meeting of the directors called by them. 5. NOTICE Notice of any special meeting shall be given at least two (2) days prior thereto by written notice delivered personally, or by telegram or mailed to each director at his business address. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. if notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 6. QUORUM At any meeting of the directors, a majority of those elected and currently serving shall constitute a quorum for the transaction of business, but if less than said number is present at a meeting a majority of the directors present may adjourn the meeting from time to 3 time without further notice. 7. MANNER OF ACTING The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the directors. 8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board may be filled by a vote of a majority of the directors then in office, although less than a quorum exists. A director elected to fill a vacancy caused by resignation, death or removal, shall be elected to hold office for the unexpired term of his predecessor. 9. REMOVAL OF DIRECTORS Any or all of the directors may be removed for cause by vote of the stockholders or by action of the Board. Directors may be removed without cause only by action of the stockholders. 10. RESIGNATION A director may resign at any time by giving written notice to the Board, the President or the Secretary of the corporation. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the Board, and the acceptance of the resignation shall not be necessary to make it effective. 11. PRESUMPTION OF ASSENT A director of the corporation who is present at a meeting of the directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 12. COMMITTEES The Board of Directors may appoint such Committees from among its members as the Board desires. All such Committees shall serve at the pleasure of the Board and shall have such duties, powers and responsibilities as set forth in the resolution establishing same. 4 13. ALTERNATIVE METHODS OF CONDUCTING BUSINESS A. Action by Consent of Board without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any Committee thereof may be taken without a meeting if all members of the Board or Committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or Committee. B. Participation Through Usage of Teleconferencing Equipment. Members of the Board of Directors or any Committee designated thereby may participate in a meeting of such Board or Committee by means of a conference telephone or television or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. When such meeting is conducted by means of a conference telephone, television or similar communications equipment, a written record shall be made of the action(s) taken at such meeting. ARTICLE IV - OFFICERS 1. NUMBER The officers of the corporation shall be a Chief Executive Officer, President, one or more Vice Presidents, a Secretary and a Treasurer, each of whom shall be elected by the directors. 2. ELECTION AND TERM OF OFFICE The officers of the corporation to be elected by the directors shall be elected annually at the first meeting of the Board of Directors held after each annual meeting of the stockholders. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. 3. REMOVAL Any officer or agent elected or appointed by the directors may be removed by the directors whenever, in their judgment, the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. 4. VACANCIES A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the directors for the unexpired portion of the term. 5 5. CHIEF EXECUTIVE OFFICER The Chief Executive Officer (CEO), subject to the directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the stockholders and of the directors. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts, or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated to the directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of Chief Executive Officer and such other duties as may be prescribed by the directors from time to time. The CEO shall have the authority to remove any corporate officer from office when, in his sole discretion, the removal would be in the best interests of the corporation 6. PRESIDENT The President shall be the Chief Operating Officer of the corporation and, subject to the directors, shall in general supervise and control all of the business operations of the corporation. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the directors from time to time. 7. VICE PRESIDENT The Vice President shall be elected by the Board of Directors and serve at their request. The Vice President shall perform such duties as shall be designated by the Board of Directors or the President and shall report to the President unless he designates another officer or Committee to receive said reports. 8. SECRETARY The Secretary shall keep the minutes of the stockholders and of the directors' meetings in one or more books provided for that purpose, see that all notices are duly given in accordance with the provisions of these Bylaws and keep a register of the post office address of each stockholder which shall be furnished by such stockholder, have general charge of the stock transfer books of the corporation and in general perform all duties incident to the office of the Secretary and such other duties as from time to time may be assigned to him by the President or by the directors. 6 9. TREASURER If required by the directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with surety or sureties as the directors shall determine. He shall have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for monies due and payable to the corporation from any source whatsoever, and deposit all such monies in the name of the corporation in such bank, trust companies or other depositories as shall be selected in accordance with these Bylaws and in general perform all of the duties incident to the office of the Treasurer and such other duties as from time to time may be assigned to him by the President or by the directors. ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS 1. CONTRACTS The directors may authorize any officer or officers, agent or agents to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. 2. LOANS No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the directors or in accordance with policy adopted from time-to-time or authority delegated by the Board of Directors. 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the directors. 4. DEPOSITS All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the directors may select. 5. FACSIMILE SIGNATURES Facsimile signatures of any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a Committee therefore. 7 ARTICLE VI - CERTIFICATES FOR SHARES AND TRANSFER 1. CERTIFICATES FOR SHARES Certificates representing shares of the corporation shall be in such form as shall be determined by the directors. Such certificates shall be signed by the President and by the Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the stockholders, the number of shares and date of issue shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificates shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate, a new one may be issued therefor upon such terms and indemnity to the corporation as the directors may prescribe. 2. TRANSFER OF SHARES A. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto and cancel the old certificate; every such transfer shall be entered on the transfer book of the corporation which shall be kept at its principal office or at the office of a transfer agent appointed by the corporation. B. The corporation shall be entitled to treat the holder of record of any shares as the holder in fact thereof, and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of this state. ARTICLE VII - FISCAL YEAR The Fiscal Year of the corporation shall begin on the first day of January in each year. ARTICLE VIII - DIVIDENDS The directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law. ARTICLE IX - CORPORATE RECORDS 1. INSPECTION OF RECORDS BY SHAREHOLDERS The share register, or duplicate share register, shall be open to inspection by a shareholder upon proper written request for a purpose reasonably related to his interests 8 as a shareholder. Such inspection by a shareholder may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. Shareholders acting pursuant to this provision shall request inspection by writing to the President or Secretary of the corporation, specifying the purpose for such inspection under oath, and sending a copy of such request to the corporation's General Counsel. 2. INSPECTION OF RECORDS BY DIRECTORS Every director shall have the right at any reasonable time to inspect all books, records, documents of every kind, and the physical properties of the corporation, and also of its subsidiary corporations, domestic or foreign. Such a right must be reasonably related, as determined by a majority of the Board of Directors then in office to the director's position and responsibilities as a director of the corporation. Such inspection by a director may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. ARTICLE X - SEAL The directors may provide for a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation, the state of incorporation, and the year of incorporation. ARTICLE XI - WAIVER OF NOTICE Unless otherwise provided by law, whenever any notice is required to be given to any stockholder or director of the corporation under the provisions of these Bylaws or under the provisions of the Certificate of Incorporation, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XII - AMENDMENTS A. These Bylaws may be altered, amended, or repealed, and new Bylaws may be adopted by a vote of the stockholders representing a majority of all the shares issued outstanding and authorized to vote at any annual stockholders' meeting or at any special stockholders' meeting when the proposed amendment has been set out in the notice of such meeting or by written consent signed by all stockholders of record. B. These Bylaws may be altered, amended or repealed and new Bylaws adopted without shareholder approval by the affirmative vote of a majority of the Board of directors provided, however, that the Board shall not have the power to alter, amend or repeal any Bylaw adopted by the shareholders pursuant to paragraph A above of said Bylaws, if such Bylaw, when adopted, contains a clause therein that it may not be altered, amended, or repealed by the Board of Directors. 9 ARTICLE XIII - INDEMNIFICATION A. Action etc. Other Than by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful. B. Actions. etc., by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of this duty to the corporation unless and only to the extent that the court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability by in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other such court shall deem proper. C. Determination of Indemnification. My indemnification under items A or B (unless ordered by a court) shall be made by the corporation unless a determination is reasonably and promptly made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in written opinion, or (iii) by the stockholders, that such person acted in bad faith and in a manner that such person did not believe to be in or not opposed 10 to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe that his conduct was unlawful. D. Indemnification Against Expenses of Successful Party. Notwithstanding the other provisions of this Article, to the extent that an agent of the corporation has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any proceeding or in defense of any claim, issue or matter therein, such agent shall be indemnified against all expenses incurred in connection therewith. E. Advances of Expenses. Except as limited by item F of this Article, expenses incurred in any proceeding shall be paid by the corporation in advance of the final disposition of such proceeding, if the agent shall undertake to repay such amount in the event that it is ultimately determined, as provided herein, that such person is not entitled to indemnification. Notwithstanding the foregoing, no advance shall be made by the corporation if a determination is reasonably and promptly made by the Board of Directors by a majority vote of quorum of disinterested directors, or (if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs) by independent legal counsel in a written opinion, that, based upon the facts known to the Board or counsel at the time such determination is made, such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Board or Independent legal counsel reasonably determines that such person deliberately breached his duty to the corporation or its shareholders. F. Right of Agent to Indemnification Upon Application; Procedure Upon Application. Any indemnification under items B,C, and D, or advance under item E of this Article, shall be made promptly, and in any event within ninety days, upon the written request of the agent, unless with respect to applications under items B,C, or E, a determination is reasonably and promptly made by the Board of Directors by a majority vote or a quorum of disinterested directors that such agent acted in a manner set forth in such items as to justify the corporation's not indemnifying or making an advance to the agent. In the event no quorum of disinterested directors is obtainable, the Board of Directors shall promptly direct that independent legal counsel shall decide whether the agent acted in the manner set forth in such Sections as to justify the corporation's not indemnifying or making an advance to the agent. The right to indemnification or advances as granted by this Article shall be enforceable by the agent in any court of competent jurisdiction, if the Board or independent legal counsel denies the claim, in whole or in part, or if no disposition of such claim is made within ninety days. The agent's expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the corporation. G. Other Rights and Remedies. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be 11 entitled under any Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. All rights to indemnification under this Article shall be deemed to be provided by a contract between the corporation and the director, officer, employee or agent who serves in such capacity at any time while these Bylaws and other relevant provisions of the general corporation law and other applicable law, if any, are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing. H. Insurance. Upon resolution passed by the Board, the corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article. I. Constituent Corporations. For the purposes of this Article, references to the "the corporation" shall include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would if he had served the resulting or surviving corporation in the same capacity. J. Other Enterprises. Fines, and Serving at Corporation's Request. For the purposes of this Article, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; any person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Article. K. Savings Clause. If this Article or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each agent of the corporation as to expenses (including attorneys' fees), judgments, fines and amounts paid in a settlement with respect to any action, suit or proceeding, whether 12 civil, criminal, administrative or investigative, including a grand jury proceeding and an action by the corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated or by any other applicable law. 13 EX-99.T3B7 85 exhibit_t3b-7.txt ARTICLES OF AMENDMENT TO THE CHARTER OF ERCE HYDRO SERVICES CORPORATION Pursuant to the provisions of Section 48-20-106 of the Tennessee Business Corporation Act, the undersigned corporation adopts the following articles of amendment to its charter: 1. The name of the corporation is ERCE Hydro Services Corporation. 2. The text of each amendment adopted is: ______ ______. ONE: The name of the corporation is Ogden Hydro Operations, Inc. 3. The corporation is a for-profit corporation. 4. The manner (if not set forth in the amendment for implementation of any exchange, reclassification, or cancellation of issued shares is as follows: 5. The amendment was duly adopted on December 11, 1991 by (the shareholders). [NOTE: Please strike the choices which do not apply to this amendment.] 6. If the amendment is not to be effective when these articles arc filed by the Secretary of State, the date/time it will be effective is January 1, 1992 (date) 12:01 AM (time), [NOTE: The delayed effective date shall not be later than the 90th day after the date this document is filed by the Secretary of State.] December 11, 1991 ERCE Hydro Services Corporation Signature Date Name of Corporation Secretary /s/Sharon G. Province - -------------------------- ---------------------------------- Signer's Capacity Signature 6 Sharon G. Province ---------------------------------- Name (typed or printed) 7 State of Tennessee For Office Use Only Department of State Corporate Filings 312 Eighth Avenue North 6th Floor, William R. Snodgrass Tower Nashville, TN 37243 ARTICLES OF AMENDMENT TO THE CHARTER (For-Profit) CORPORATE CONTROL NUMBER (IF KNOWN) 223406 PURSUANT TO THE PROVISIONS OF SECTION 48-20-106 OF THE TENNESSEE BUSINESS CORPORATION ACT. THE UNDERSIGNED CORPORATION ADOPTS THE FOLLOWING ARTICLES OF AMENDMENT TO ITS CHARTER: 1. PLEASE INSERT THE NAME OF THE CORPORATION AS IT APPEARS OF RECORD: Ogden Hydro Operations, Inc. IF CHANGING THE NAME, INSERT THE NEW NAME ON THE LINE BELOW: Covanta Hydro Operations, Inc. 2. PLEASE MARK THE BLOCK THAT APPLIES: [X] AMENDMENT IS TO BE EFFECTIVE WHEN FILED BY THE SECRETARY OF STATE. [ ] AMENDMENT IS TO BE EFFECTIVE, _____________________ (MONTH, DAY, YEAR) (NOT TO BE LATER THAN THE 90TH DAY AFTER THE DATE OF THIS DOCUMENT IS FILED) IF NEITHER BLOCK IS CHECKED, THE AMENDMENT WILL BE EFFECTIVE AT THE TIME OF FILING. 3. PLEASE INSERT ANY CHANGES THAT APPLY The new name is Covanta Hydro Operations, Inc. [NOTE: IF CHANGING THE PRINCIPAL OR REGISTERED AGENT ADDRESS, A COMPLETE STREET ADDRESS, INCLUDING CITY, STATE, ZIP CODE AND COUNTY MUST BE PROVIDED.] 4. THE CORPORATION IS FOR PROFIT. 8 5. THE MANNER (IF NOT SET FORTH IN THE AMENDMENT) FOR IMPLEMENTATION OF ANY EXCHANGE, RECLASSIFICATION, OR CANCELLATION OF ISSUED SHARES IS AS FOLLOWS: N/A 6. THE AMENDMENT WAS DULY ADOPTED ON February 28, 2001 (MONTH, DAY, YEAR) BY (Please mark the block that applies): [ ] THE INCORPORATORS WITHOUT SHAREHOLDER ACTION, AS SUCH WAS NOT REQUIRED. [ ] THE BOARD OF DIRECTORS WITHOUT SHAREHOLDER APPROVAL, AS SUCH WAS NOT REQUIRED. THE SHAREHOLDERS Ass. Secretary /s/ Patricia Collins - ----------------------- --------------------------- SIGNER'S CAPACITY SIGNATURE March 12, 2001 Patricia Collins - ----------------------- --------------------------- DATE NAME OF SIGNER (TYPED OR PRINTED) 9 EX-99.T3B8 86 exhibit_t3b-8.txt Exhibit T3B-8 OGDEN ENERGY GROUP, INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be the City of Dover, County of Kent, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting to be held. The list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute 2 or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present person or represented by proxy, shall have power to adjourn the 3 meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder or record entitled to vote at the meeting. Section 9. When a quorum present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote required is which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after 4 three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall not be less than three nor more than 6, the first board shall consist of five (5) directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The 5 directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified, Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. 6 Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified a written waiver signed by all of the directors. 7 Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action 8 required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. 9 Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a 10 dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, 11 by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. The board of 12 directors may also choose additional vice presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the 13 stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. In the absence of the president or the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and 14 record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or there be more than one, the assistant secretaries in the order determined by the board of directors (or there be no such determination, then in the order of their election) shall, the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 15 THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and far the restoration to the corporation, case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. 16 Section 14. The assistant treasurer, or there shall be more than one, the assistant treasurers in the order determined by the board of directors (or there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertified stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each 17 stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or 18 destroyed certificate or certificates, or his legal representative, to advertise the same such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a 19 meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on the books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. 20 ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. 21 CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall coincide with the calendar year unless otherwise fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such testator or intestate is or was a director, officer, employee or agent of the Corporation or 22 serves or served at the request of the Corporation any other enterprise as a director, officer, employee or agent against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any and all expenses (including attorneys' fees) incurred by any such person in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by of an undertaking by or on behalf of such person to repay such expenses if it shall ultimately be determined by a final judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent Corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the 23 term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan which such person reasonably believes to be the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws 24 is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 28 EX-99.T3B9 87 exhibit_t3b-9.txt Exhibit T3B-9 OGDEN ENERGY, INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in the City of Fairfield, State of New Jersey, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without 1 the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1995, shall be held at such date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place 2 where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than 10 nor more than 60 days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all 3 meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. 4 Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than 3 nor more than 5. The 5 first board shall consist of 3 directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to 6 be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for 7 special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on 10 days' notice to each director, either personally or by mail or by facsimile communication; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. 8 Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. 9 Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to 10 declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders 11 of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by facsimile telecommunication. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board 12 and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. 13 THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof 14 shall be expressly delegated by the board of directors to some other officer or agent of the corporation. Section 10. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant 15 secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. 16 Section 15. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the 17 treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it 18 may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the 19 purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors 20 at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. 21 FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 22 EX-99.T3B10 88 exhibit_t3b-10.txt Exhibit T3B-10 OGDEN ENERGY RESOURCE CORP. * * * * ** Eli - LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1.. All meetings of the stockholders for the election of directors shall be held in the City of Fairfield, 1 State of New Jersey, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than thirty nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder 2 and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of a t least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not 3 less than thirty nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote it the meeting. 4 Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or 5 take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified, Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly 6 elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. 7 Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum nail be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a letter written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president in ten days' notice to each director, either personally or by mail or by telegram: special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director: in which case special meetings shall be called by the president or secretary in like 8 manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of 9 directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the 10 corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined 11 from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings arid report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors arid may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefore. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section ~.4. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, 12 by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice I s required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. 13 ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be one or more presidents, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose one or more presidents, one or more vice-presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the 14 board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 6. The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers arid duties as chief operating officers of corporations usually have or as the Board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the 15 restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined 16 by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every 17 six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more `than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the 18 treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the Qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. 19 LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person 20 entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto arid the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the 21 board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. 22 Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purposes as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. 23 FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware'. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of 24 directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 25 EX-99.T3B11 89 exhibit_t3b-11.txt Exhibit T3B-11 OGDEN ALLIED RESOURCE RECOVERY SUPPORT SERVICES, INC. * * ** * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitle to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute ox by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The first board shall consist of three directors, Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meeting, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place a shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such tine and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors, The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section. 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shah be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation, Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certifieste alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment Of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action, a determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its hooks as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation, Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was erected. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware", The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise, INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. EX-99.T3B12 90 exhibit_t3b-12.txt Exhibit T3B-12 OGDEN ENERGY WEST, INC. BY-LAWS ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting; to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder or record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide 2 any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall not be less than three nor more than six. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, 3 unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall 4 be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the 5 power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreements of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. 6 ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. The board of directors may also choose additional vice presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. 7 Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose 8 supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such 9 determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertified stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the 10 owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on the books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner 11 of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall coincide with the calendar year unless otherwise fixed by resolution of the board of directors. 12 SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director, officer, employee or agent of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer, employee or agent against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any and all expenses (including attorneys' fees) incurred by any such person in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses if it shall ultimately be determined by a final judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent Corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director, officer 13 or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation. ARTICLE VII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 14 EX-99.T3B13 91 exhibit_t3b-13.txt Exhibit T3B-13 OGDEN MARTIN SYSTEMS OF PENNSAUKEN, INC. ------------- BY-LAWS ------------- ARTICLE I OFFICES Section 1. The registered office shall be located in Trenton, New Jersey. Section 2. The corporation may also have offices at such other places both within and without the State of New Jersey as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held in the City of New York, State of New York, at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as may be determined by the board of directors, if not a legal holiday, and if a legal holiday, then on the next secular day following, as stated in the notice of meeting, at which the shareholders shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the time, place, and purpose or purposes of the meeting shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of New Jersey as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president, the board of directors, or the holders of not less than fifty percent of all the shares entitled to vote at the meeting. Special meetings of the shareholders may be called also by the chairman of the board of directors. Section 3. Written notice of a special meeting stating the time, place, and purpose or purposes of the meeting for which the meeting is called, shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the president, the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. Section 4. Business transacted at any special meeting shall be confined to the purpose or purposes stated in the notice thereof. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the certificate of incorporation. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders, unless otherwise provided in the certificate of incorporation. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his agent. In all elections for directors every shareholder, entitled to vote, shall have the right to vote, in person or by proxy, the number of shares of stock owned by him, for as many persons as there are directors to be elected and for whose election he has a right to vote, or, if the certificate of incorporation so provides, to cumulate the vote of said shares, and give one candidate as many votes as the number of directors multiplied by the aggregate number of his votes shall equal, or to distribute the votes on the same principle among as many candidates as he may see fit. Section 4. Subject to statutory provisions, any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. Except as provided in the certificate of incorporation and subject to the statutory provisions and upon compliance therewith any action required to be taken at a meeting of shareholders, other than the annual election of directors, may be taken without a meeting upon the written consent of shareholders who would have been entitled to cast the minimum number of votes which would be necessary to authorize such action at a meeting at which all shareholders entitled to vote thereon were present and voting. ARTICLE V DIRECTORS Section 1. The number of directors which shall constitute the whole board of directors, other than the first board of directors, shall be not less than three nor more than five. Directors need not be residents of the State of New Jersey nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Unless otherwise provided in the certificate of incorporation, any vacancy occurring in the board of directors nay be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors. A director elected to fill a vacancy shall be elected for the unexpired portion of the term of his predecessor in office. Any directorship to be filled by reason of an increase in the number of directors shall be filled by election at an annual meeting or at a special meeting of shareholders called for that purpose. A director elected to fill a newly created directorship shall serve until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualified. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all suck powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the Shareholders. Section 4. The directors may keep the books and records of the corporation, except such as are required by law to be kept within the state, outside of the State of New Jersey, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of New Jersey. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors. In order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings or' the board of directors may be called by the president on three days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Notice need not be given to any director who signs a waiver of notice, whether before or after the meeting. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater or lesser number is required by statute or by the certificate of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater or lesser number is required by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Unless otherwise provided by the certificate of incorporation, any action required to be taken at a meeting of the board, or any committee thereof, shall be deemed the action of the board of directors or of a committee thereof, if all directors or committee members, as the case may be, execute either before or after the action is taken, a written consent thereto, and the consent is filed with the records of the corporation. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the by-laws or otherwise, may designate one or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail, Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the certificate of incorporation or these by-laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers, Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terns and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by, the chairman or vice- chairman of the board, or the president or a vice-president and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation w ill furnish to any shareholder upon request and without charge, a full statement of the designations, preferences, limitations and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers of the corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that nay be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed OF accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled: and the transaction recorded upon the books of the corporation. CLOSING OF TRANSFER BOOKS Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof or entitled to receive payment of any dividend or allotment of any right, or entitled to give a written consent to any action without a meeting, or in order to make a determination of shareholders for any other proper purpose, the board of directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, sixty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. If the stock transfer book shall be closed for the purpose of determining shareholders entitled to give a written consent to any action without a meeting, such books may not be closed for more than sixty days before the date fixed for tabulation of consents or if no date has been fixed for tabulation, the books may not be closed for more than sixty days before the last day on which consents received may be counted. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than sixty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken and, in case of determining shareholders entitled to give a written consent the record date may not be more than sixty days before the date fixed for tabulation of the consents or if no date has been fixed for the tabulation, more than sixty days before the last day on which consents may be counted. If the stock transfer books are not closed and no record date is fixed, the record date for a shareholders' meeting shall be the close of business on the day next preceding the day on which notice is given, or, if no notice is given, the day next preceding the day on which the meeting is held; and the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the resolution of the board relating thereto is adopted. When a determination of shareholders of record for a shareholders' meeting has been made as provided in this section, such determination shall apply to any adjournment thereof unless the board fixes a new record date for the adjourned meeting. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall, have express or other notice thereof, except as otherwise provided by the laws of New Jersey. LIST OF SHAREHOLDERS Section 7. The officer or agent having charge of the transfer books for shares shall make, and certify a complete list of the shareholders entitled to vote at a shareholders' meeting, or adjournment thereof, arranged in alphabetical order within each class, series, or group of shareholders maintained by the corporation for convenience of reference, with the address of, and the number of shares held by each shareholder, which list shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. Such list shall be prima facie evidence as to who are the shareholders entitled to examine such list or to vote at any meeting of the shareholders. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the certificate of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in its bonds, in its own shares or other property including the shares or bonds of other corporations subject to any provisions of law and of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the Corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, New Jersey". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These by-laws may be altered, amended, or repealed or new by-laws may be adopted by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board, subject to any provision in the certificate of incorporation reserving to the shareholders the power to adopt, amend, or repeal by-laws, but by-laws made by the board may be altered or repealed and new by-laws made by the shareholders. The shareholders may prescribe that any by-law made by them shall not be altered or repealed by the board. Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto: and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto: and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto: and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto: and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. RICHARD ABLON /s/ SCOTT G. MACKIN ---------------------- ---------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ BRUCE W. STONE ---------------------- BRUCE W. STONE EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems at Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Mart in Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. HRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. EX-99.T3B14 92 exhibit_t3b-14.txt Exhibit T3B-14 GEOTHERMAL OPERATIONS HOLDINGS, INC. BY-LAWS ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. 1 Exhibit T3B-14 Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the 2 Exhibit T3B-14 notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in wilting of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 3 Exhibit T3B-14 Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder or record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any 4 Exhibit T3B-14 question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to 5 Exhibit T3B-14 vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall not be less than three nor more than 6. The first board shall consist of 3 directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly 6 Exhibit T3B-14 elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these bylaws directed or required to be exercised or done by the stockholders. 7 Exhibit T3B-14 MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, 8 Exhibit T3B-14 either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case 9 Exhibit T3B-14 may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may 10 Exhibit T3B-14 exercise all the powers and authority of the board of directors in the management of business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a 11 Exhibit T3B-14 dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. 12 Exhibit T3B-14 REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said 13 Exhibit T3B-14 notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. The board of directors may also choose additional vice presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. 14 Exhibit T3B-14 Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 15 Exhibit T3B-14 THE VICE PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of 16 Exhibit T3B-14 the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there he no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the 17 Exhibit T3B-14 corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in 18 Exhibit T3B-14 the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertified stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other 19 Exhibit T3B-14 special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or 20 Exhibit T3B-14 destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. 21 Exhibit T3B-14 FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on the books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a 22 Exhibit T3B-14 person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to 23 Exhibit T3B-14 the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall coincide with the calendar year unless otherwise fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal 24 Exhibit T3B-14 may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director, officer, employee or agent of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer, employee or agent against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any and all expenses (including attorneys' fees) incurred by any such person in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses if it shall 25 Exhibit T3B-14 ultimately be determined by a final judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent Corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by 26 Exhibit T3B-14 a person with respect to any employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation. ARTICLE VII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 27 EX-99.T3B15 93 exhibit_t3b-15.txt Exhibit T3B-15 BYLAWS OF ERCF HYDRO PARTNER I, INC, ARTICLE I - OFFICE The corporation shall maintain a principal office in the Commonwealth of Virginia, County of Fairfax, and may also have an office or offices at such other place or places, either within or without the State of Delaware, as may be designated by the Board of Directors. ARTICLE II - STOCKHOLDERS 1. ANNUAL MEETING An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place on such date, and at such time as the Board of Directors shall each year fix, which date shall be within fourteen (14) months subsequent to the last annual meeting of stockholders. 2. SPECIAL MEETING Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President, by the Board of Directors, or by the holders of not less than ten percent (10%) of the outstanding voting stock of the corporation. The special meeting will then be held on a date established by the President not more than ninety (90) days after the Secretary has notified the Board of Directors. For all special meetings, the President or the Board of Directors shall have the power to determine (within the limitations permitted by law) the form, content, means of communication and timing of notice of such meeting. 3. PLACE OF MEETING The directors may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for meeting or any annual meeting or for any special meeting. A waiver of notice signed by all stockholders entitled to vote at a meeting may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for holding such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation. 4. NOTICE OF MEETING Written or printed notice stating the place, thy and hour of the meeting, and accompanied by an agenda of the meeting shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary or the officer or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the stockholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid; provided that written notice of a meeting shall be delivered, as set forth above, not less than twenty (20) days before the date of such meeting if action is to be taken on a plan Contemplating merger or consolidation of the corporation with another corporation. 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE A. For the purpose of determining the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or in order to make a determination of stockholders for any proper purpose, except for the payment of dividends, the Board of Directors of the corporation only provide that the stock transfer books shall be closed for stated period but not to exceed, in any case, sixty (60) days. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of stockholders, such date in any case to be not more than sixty (60) days prior to the date on which the particular action, requiring such determination of stockholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders, the date on which notice of the meeting is mailed shall be the record date for such determination of stockholders. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof. B. For the purpose of determining the stockholders entitled to receive payment of any dividend, the Board of Directors shall fix in advance a date as the record date for such determination of stockholders, such date in any case to be not more than sixty (60) days prior to the date on which the particular action, requiring such determination of stockholders, is to be taken. If no record date is fixed for the determination of stockholders entitled to receive payment of a dividend, the date on which the resolution of the Board of Directors declaring such dividend is adopted shall be the record date for such determination of stockholders. 6. VOTING LISTS The officer or agent having charge of the stock transfer books for shares of the corporation shall make, at least ten (10) days before each meeting of stockholders, a complete list of the stockholders entitled to vote at such meetings, or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten (10) days prior to such meeting, shall be kept on file at the principal office of for corporation and shall be subject to inspection at any time during the usual business hours by any person (who shall have been a stockholder of record for at least six (6) months immediately preceding his request to inspect the list or who shall be the holder of record of at least five (5%) of all the outstanding shares of the corporation. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any stockholder during the whole time of the meeting The original stock transfer book shall be prima facie evidence as to who are the stockholders entitled to examine such list or transfer books or to vote at the meeting of stockholders. 7. QUORUM At any meeting of stockholders, thirty-three and one-half percent (33-112%)of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than said number of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time and notice shall be given to all shareholders. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. 8. PROXIES At all meetings of stockholders, a stockholder may vote by proxy executed in writing by the stockholder or by his duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. The Board of Directors, in advance of any annual or special meeting of the shareholders, may prescribe additional regulations concerning the manner of execution and filing of proxies and the validation of the same, which are intended to be voted at any such meeting. 9. VOTING A. General. Each stockholder entitled to vote in accordance with the terms and provisions of the Certificate of Incorporation and these Bylaws shall be entitled to one (1) vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder. Upon the demand of any stockholder, the vote for directors and upon any questions before the meeting shall be by ballot. All elections for directors shall be decided by majority vote except as otherwise provided by Certificate of Incorporation or the laws of this State. B. Voting by P1edge, Trustee, Fiduciary. Shares standing in the name of any persons as pledgee, trustee, or other fiduciary may be voted and all the rights incident thereto may be exercised only by the pledgee, trustee, or other fiduciary, in person or by proxy, and without proof of authority. However, when a trust company has caused shares to be registered in the name of one or more nominees of the trust company, such shares may be voted and all rights incident thereto may be exercised by such nominee or nominees without proof of authority. C. Voting Shares in Names of Two or More Persons. Shares standing in the names of two or more persons shall be voted or represented in accordance with the vote or consent of the majority of the persons in whose names the shares stand. If only one such person is present in person or by proxy, he may vote all the shares, and all the shares standing in the names of such persons are represented for the purpose of determining a quorum. This Bylaw applies to the voting of shares by two or more administrators, executors, trustees, or other fiduciaries, unless the instrument or order of court appointing them otherwise directs. 10. ORDER OF BUSINESS The order of business at all meetings of the stockholders shall be determined by the Chairman, President, or the Board of Directors. ARTICLE III - BOARD OF DIRECTORS 1. GENERAL POWER The business and affairs of the corporation shall be managed by its Board of Directors. The directors shall in all cases act as a Board. 2. NUMBER, TENURE AND QUALIFICATIONS The number of directors of the corporation shall be not less than three (3) nor more than fifteen (15). Each director shall hold office until the next annual meeting of stockholders, at which the class of directors of which he is a member is to be elected, and until his successor shall have been elected and qualified. The actual number of directors shall be established by the Board. 3. REGULAR MEETINGS A regular meeting of the directors shall be held without other notice than this Bylaw immediately after, and at the same place as, the annual meeting of the stockholders. The directors may provide, by resolution, the time and place for the holding of additional regular meetings without other notice than such resolution. 4. SPECIAL MEETINGS Special meetings of the directors may be called by or at the request of the Chairman, President, Secretary, or any two (2) directors. The person or persons authorized to call special meetings of the directors may fix the place for holding any special meeting of the directors called by them. 5. NOTICE Notice of any special meeting shall be given at least two (2) days prior thereto by written notice delivered personally, or by telegram or mailed to each director at his business address. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid if notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 6. QUORUM At any meeting of the directors a majority of those elected and currently serving shall constitute a quorum for the transaction of business, but if less than said number is present at a meeting a majority of the directors present may adjourn the meeting from time to time without further notice. 7. MANNER OF ACTING The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the directors. 8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board may be filled by a vote of a majority of the directors then in office, although less than a quorum exists. A director elected to fill a vacancy caused by resignation, death or removal, shall be elected to hold office for the unexpired term of his predecessor. 9. REMOVAL OF DIRECTORS Any or all of the directors may be removed for cause by vote of the stockholders or by action of the Board. Directors may be removed without cause only by action of the stockholders. 10. RESIGNATION A director may resign at any time by giving written notice to the Board, the President or the Secretary of the corporation. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the Board, and the acceptance of the resignation shall not be necessary to make it effective. 11. COMPENSATION The directors may be paid their expenses of attendance at each meeting of the Board of Directors or Committee thereof and may be paid a fixed sum for attendance at each such meeting or a stated salary or fee as a director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation thereof. 12. PRESUMPTION OF ASSENT A director of the corporation who is present at a meeting of the directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in fir minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 13. COMMITTEES A. Executive Committee. The Board of Directors may appoint from among its members an Executive Committee of not less than two (2) nor more than seven (7) members, one of whom shall be the President, and shall designate one or more of its members as alternates to serve as a member or members of the Executive Committee in the absence of a regular member or members. The Board of Directors reserves to itself alone the power to approve an amendment to the Articles of Incorporation; approve a plan of merger or consolidation; approve a plan or exchange under which the corporation would be acquired; approve the sale, lease or exchange or the mortgage or pledge for consideration other than money of all or substantially all of the property and assets of the corporation other than in the regular course of business; approve the voluntary dissolution of the Company or revocation of voluntary dissolution proceedings. Subject to the foregoing limitations, the Executive Committee shall possess and exercise all other power of the Board of Directors during the intervals between meetings. B. Other Committees. The Board of Directors may appoint such other Committees from among its members as the Board desires. All such Committees shall serve at the pleasure of the Board and shall have such duties, powers and responsibilities as set forth in the resolution establishing same. 14. ALTERNATIVE METHODS OF CONDUCTING BUSINESS A. Action by Consent of Board without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any Committee thereof may be taken without a meeting if all members of the Board or Committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or Committee. B. Participation Through Usage of Teleconferencing Equipment. Members of the Board of Directors or any Committee designated thereby may participate in a meeting of such Board or Committee by means of a conference telephone or television or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. When such meeting is conducted by means of a conference telephone, television or similar communications equipment, a written record shall be made of the action(s) taken at such meeting. ARTICLE IV - OFFICERS 1. NUMBER The officers of the corporation shall be a President, one or more Executive Vice Presidents, one or more Vice Presidents, a Secretary and a Treasurer, each of whom shall be elected by the directors. Such other officers and assistant officers as may be deemed necessary may be elected or appointed by the directors. 2. ELECTION AND TERM OF OFFICE The officers of the corporation to be elected by the directors shall be elected annually at the first meeting of the Board of Directors held after each annual meeting of the stockholders. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. 3. REMOVAL Any officer or agent elected or appointed by the directors may be removed by the directors whenever, in their judgment, the best interests of the corporation would be sewed thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. 4. VACANCIES A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the directors for the unexpired portion of the term. 5. CHAIRMAN The Chairman of the Board of Directors shall be the Chief Executive Officer of the corporation and, subject to the directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the stockholders and of the directors. He may sign with tic Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation any deeds, mortgages, bonds, contracts, or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the directors or by these Bylaws to some other officer of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of Chairman and such other duties as ray be prescribed by the directors from time to time. The Chairman shall have the authority to remove any corporate officer from office when, in his sole discretion, the removal would be in the best interests of the corporation. 6. PRESIDENT The President shall be the Chief Operating Officer of the corporation and, subject to the directors and the Chief Executive Officer, shall in general supervise and control all of the business operations of the corporation. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the directors from time to time. 7. EXECUTIVE VICE PRESIDENT In the absence of the President or in the event of his death, inability or refusal to act, an Executive Vice President shall perform the duties of the President, and when so acting, shall have all the power of and be subject to all the restrictions upon the President. The Executive Vice President shall perform such other duties as from time to time may be assigned to him by lit President or directors. 8. VICE PRESIDENT The Vice President shall be elected by the Board of Directors and serve at their request. The Vice President shall perform such duties as shall be designated by the Board of Directors or the President and shall report to the President unless he designates another officer or Committee to receive said reports. 9. SECRETARY The Secretary shall keep the minutes of the stockholders and of the directors' meetings in one or more books provided for that purpose, see that all notices are duly given in accordance with the provisions of these Bylaws and keep a register of the post office address of each stockholder which shall be furnished to the Secretary by such stockholder, have general charge of the stock transfer books of the corporation and in general perform all duties incident to the office of the Secretary and such other duties as from time to time may be assigned to him by the President or by the directors. One or more assistant secretaries may be appointed by the Board of Directors to execute duties incident to the Office of Secretary in the absence of the Secretary. 10. TREASURER If required by the directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with surety or sureties as the directors shall determine. He shall have charge and custody of and be responsible for all finds and securities of the corporation; receive and give receipts for monies due and payable to the corporation from any source whatsoever, and deposit all such monies in the name of the corporation in such bank, trust companies or other depositories as is all be selected in accordance with these Bylaws and in general perform all of the duties incident to the office of the Treasurer and such other duties as from time to time may be assigned to him by the President or by the directors. 11. SALARIES The salaries of the officers shall be fixed from time to time by the directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS 1. CONTRACTS The directors may authorize any officer of officers, agent or agents to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. 2. LOANS No loans shall be contracted on behalf of the corporation and ix evidences of indebtedness shall be issued in its name unless authorized by a resolution of the directors or in accordance with policy adopted from time-to-time or authority delegated by the Board of Directors. 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution if the directors. 4. DEPOSITS All finds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the directors may select. 5. EXERCISE OF RIGHTS AS STOCKHOLDER Unless otherwise ordered by the Board of Directors, the Chairman of the Board, President, Secretary, or a Vice President thereunto duly authorized on behalf of the Company to attend and to vote at any meeting of stockholders of any corporation in which this Company may hold stock and nay exercise on behalf of this company any and all of the rights and powers incident to the ownership of such stuck at any such meeting, and shall have power and authority to execute and deliver proxies and consents on behalf of this Company of the rights and powers incident to the ownership of such stock. The Board of Directors, from time to time, may confer like powers upon any other person or persons. 6. FACSIMILE SIGNATURES Facsimile signatures of any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a Committee therefore. ARTICLE VI - CERTIFICATES FOR SHARES AND TRANSFER 1. CERTIFICATES FOR SHARES Certificates representing shares of the corporation shall be in such form as shall be determined by the directors. Such certificates shall be signed by the Chairman or President and by the Secretary or Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the stockholders, the number of shares and date of issue shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificates shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate, a new one may be issued therefor upon such terms and indemnity to the corporation as the directors may prescribe. 2. TRANSFER OF SHARES A. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto and cancel the old certificate; every such transfer shall be entered on the transfer book of the corporation which shall be kept at its principal office or at the office of a transfer agent appointed by the corporation, B. The corporation shall be entitled to treat the holder of record of any shares as the holder in fact thereof, and, accordingly, shall nut be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of this state. ARTICLE VII - FISCAL YEAR The Fiscal Year of the corporation shall begin on the first day of January in each year. ARTICLE VIII - DIVIDENDS The directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law. ARTICLE IX - CORPORATE RECORDS 1. INSPECTION OF RECORDS BY SHAREHOLDERS The share register, or duplicate share register, shall be open to inspection by a shareholder upon proper written request for a purpose reasonably related to his interests as a shareholder. Such inspection by a shareholder or holder of a voting trust certificate may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. Shareholders acting pursuant to this provision shall request inspection by writing to the President or Secretary of the corporation, specifying the purpose for such inspection under oath, and sending a copy of such request to the corporation's General Counsel. 2. INSPECTION OF RECORDS BY DIRECTORS Every director shall have the right at any reasonable time to inspect all books, records, documents of every kind, and the physical properties of the corporation, and also of its subsidiary corporations, domestic or foreign. Such a right must be reasonably related, as determined by a majority of the Board of Directors then in office to the director's position and responsibilities as a director of the corporation. Such inspection by a director may be made in person or by agent or attorney, and the right of inspection includes lie right to make extracts. ARTICLE X - SEAL The directors may provide for a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation, the state of incorporation, and the year of incorporation. ARTICLE XI - WAIVER OF NOTICE Unless otherwise provided by law, whenever any notice is required to be given to any stockholder or director of the corporation under the provisions of these Bylaws or under the provisions of the Certificate of Incorporation, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XII - AMENDMENTS A. These Bylaws may be altered, amended, or repealed, and new Bylaws may be adopted by a vote of the stockholders representing a majority of all the shares issued and outstanding, at any annual stockholders' meeting or at any special stockholders' meeting when the proposed amendment has been set out in the notice of such meeting or by written consent signed by all stockholders of record. B. These Bylaws may be altered, amended or repealed and new Bylaws adopted without shareholder approval by the affirmative vote of a majority of the Board of directors provided, however, that the Board shall not have the power to alter, amend or repeal any Bylaw adopted by the shareholders pursuant to paragraph A above of said Bylaws, if such Bylaw, when adopted, contains a clause therein that it may not be altered, amended, or repealed by the Board of Directors. ARTICLE XIII - INDEMNIFICATION A. Action, etc. Other Than by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that be is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful. B. Actions, etc. by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatcne6to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of this duty to fir corporation unless and only to the extent that the court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability by in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other such court shall deem proper. C. Determination of Indemnification. My indemnification under items A or B (unless ordered by a court) shall be made by the corporation unless a determination is reasonably and promptly made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii)if such quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in written opinion, or (iii) by the stockholders, that such person acted in bad faith and m a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe that his conduct was unlawful. D. Indemnification Against Expenses of Successful Party. Notwithstanding the other provisions of this Article, to the extent that an agent of the corporation has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any proceeding or in defense of any claim, issue or matter therein, such agent shall be indemnified against all expenses incurred in connection therewith. E. Advances of Expenses. Except as limited by item F of this Article, expenses incurred in any proceeding shall be paid by the corporation in advance of the final disposition of such proceeding, if the agent shall undertake to repay such amount in the event that it is ultimately determined, as provided herein, that such person is not entitled to indemnification. Notwithstanding the foregoing, no advance shall be made by the corporation if a determination is reasonably and promptly made by the Board of Directors by a majority vote of quorum of disinterested directors, or (if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs) by independent legal counsel in a written opinion, that, based upon the facts known to the Board or counsel at the time such determination is made, such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Board or Independent legal counsel reasonably determines that such person deliberately breached his duty to the corporation or its shareholders. F. Right of Agent to Indemnification Upon Application; Procedure Upon Application. My indemnification under items B,C, and D, or advance under item E of this Article, shall be made promptly, and in any event within ninety days, upon the written request of the agent, unless with respect to applications under items B,C, or E, a determination is reasonably and promptly made by the Board of Directors by a majority vote or a quorum of disinterested directors that such agent acted in a manner set forth in such items as to justify the corporation's not indemnifying or making an advance to the agent. In the event no quorum of disinterested directors is obtainable, the Board of Directors shall promptly direct that independent legal counsel shall decide whether the agent acted in the manner set forth in such Sections as to justify the corporation's not indemnifying or making an advance to the agent. The right to indemnification or advances as granted by this Article shall be enforceable by the agent in any court of competent jurisdiction, if the Board or independent legal counsel denies the claim, in whole or in part, or if no disposition of such claim is made within ninety days. The agent's expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnifled by the corporation. G. Other Rights and Remedies. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. All rights to indemnification under this Article shall be deemed to be provided by a contract between the corporation and the director, officer, employee or agent who serves in such capacity at any time white these Bylaws and other relevant provisions of the general corporation law and other applicable law, if any, are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing. H. Insurance. Upon resolution passed by the Board, the corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article. I. Constituent Corporations. For the purposes of this Article, references to the "the corporation" shall include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would if he had served the resulting or surviving corporation in the same capacity. J. Other Enterprises, Fines, and Serving at Corporation's Request. For the purposes of this Article, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; any person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Article. K. Savings Clause. If this Article or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each agent of the corporation as to expenses (including attorneys' fees), judgments, fines and amounts paid in a settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including a grand jury proceeding and an action by the corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated or by any other applicable law. EX-99.T3B16 94 exhibit_t3b-16.txt Exhibit T3B-16 OMS HAVERHILL PROPERTIES, INC. ***** BY-LAWS ***** ARTICLE I OFFICES Section 1. The principal office shall be located in Boston, Massachusetts. Section 2. The corporation may also have offices at such other places both within and without the Commonwealth of Massachusetts as the board of directors may from time to tine determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF STOCKHOLDERS Section 1. All meetings of stockholders for the election of directors shall be held at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of stockholders shall be held on such date and at such time as may be determined by the board of directors, if not a legal holiday, and if a legal holiday, then on the next secular day following, at which they and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors, Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the articles of organization. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the articles of organization. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth. the action so taken, shall be signed by all of the director entitled to vote with respect to the subject matter thereof. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the by-laws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of organization or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the articles of organization or these by-laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The initial officers shall be elected by the incorporators and are set forth in the articles of organization. The officers of the corporation shall be a president, a treasurer and a clerk. The president shall be chosen by the board of directors. The treasurer and the clerk shall be elected by the shareholders. The board of directors may choose one or more vice-presidents and one or more assistant treasurers and assistant clerks. None of the officers need be members of the board nor stockholders of the corporation. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose the officers for the ensuing year. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE CLERK AND ASSISTANT CLERKS Section 9. The clerk shall be a resident of the Commonwealth of Massachusetts, provided however, he need not be such resident, if, and as long as, the corporation shall appoint and maintain a resident agent for service of process within the Commonwealth. The clerk shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the record books and of the corporate seal of the corporation and he, or an assistant clerk, shall have authority to affix the seal to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant clerk. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. The office of the clerk shall be deemed to be the office of the secretary of the corporation whenever such office is required for any purpose; and, whenever the signature of the secretary of the corporation is required on any instrument, or document, by the laws of the United States, or of any other state, or in any other manner whatsoever, the clerk shall have authority to affix his signature in such capacity. Section 10. The assistant clerk, or if there be more than one, the assistant clerks in the order determined by the board of directors, shall, in the absence or disability of the clerk, perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation, Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section I, The shares of the corporation shall be represented by certificates signed by the president or a vice-president and the treasurer or an assistant treasurer of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholder upon request and without charge, a full statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Any shares subject to any restriction on transfer shall have the restriction noted- conspicuously on the certificate and shall also set forth on the face or back of the certificate either the full text of the restriction, or a statement of the existence of such restriction and a statement that the corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. Section 2. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue, LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. FIXING OF RECORD DATE Section 5. The board of directors may fix in advance a time which shall be net more than sixty days before the date of any meeting of stockholders or the date for the payment of any dividend or the making of any distribution to stockholders or the last day on which the consent or dissent of stockholders may be effectively expressed for any purpose, as the record date for determining the stockholders having the right to notice of and to vote at such meeting and any adjournment thereof or the right to receive such dividend or distribution or the right to give such consent or dissent, and in such case only stockholders of record on such record date shall have such right, notwithstanding any transfer of stock on the books of the corporation after the record date; or without fixing such record date the board of directors may for any of such purposes close the transfer books for all or any part of such period. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and. assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Massachusetts. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the articles of organization relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to any provisions of the articles of organization. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Massachusetts". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted (a) at any regular or special meeting of stockholders at which a quorun is present or represented, by the affirmative vote of a majority of the stock entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting, or (b) by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board, except with respect to any provision which by law, the articles of organization or the by-laws requires action by the stockholders, and provided further that any by-law adopted by the directors may be amended or repealed by the stockholders. BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations") , by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief operating officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto: and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. Ablon /s/ Scott G. Mackin - ------------------------------- --------------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ Bruce W. Stone ---------------------- BRUCE W. STONE EX-99.T3B17 95 exhibit_t3b-17.txt Exhibit T3B-17 The corporation shall maintain a principal office in the Commonwealth of Virginia, County of Fairfax, and may also have an office or offices at such other place or places, either within or without the State of Delaware, as may be designated by the Board of Directors. ARTICLE II - STOCKHOLDERS 1. ANNUAL MEETING An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place on such date, and at such time as the Board of Directors shall each year fix, which date shall be within fourteen (14) months subsequent to the last annual meeting of stockholders. 2. SPECIAL MEETING Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President, by the Board of Directors, or by the holders of not less than ten percent (10%) of the outstanding voting stock of the corporation. The special meeting will then be held on a date established by the President not more than ninety (90) days after the Secretary has notified the Board of Directors. For all special meetings, the President or the Board of Directors shall have the power to determine (within the limitations permitted by law) the form, content, means of communication and timing of notice of such meeting. 3. PLACE OF MEETING The directors may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for meeting or any annual meeting or for any special meeting. A waiver of notice signed by all stockholders entitled to vote at a meeting may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for holding such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation. 4. NOTICE OF MEETING Written or printed notice stating the place, day and hour of the meeting, and accompanied by an agenda of the meeting shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary or the officer or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the stockholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid; provided that written notice of a meeting shall be delivered, as set forth above, not less than twenty (20) days before the date of such meeting if action is to be taken on a plan contemplating merger or consolidation of the corporation with another corporation. 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE A. For the purpose of determining the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or in order to make a determination of stockholders for any proper purpose, except for the payment of dividends, the Board of Directors of the corporation may provide that the stock transfer books shall be closed for stated period but not to exceed, in any case, sixty (60) days. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of stockholders, such date in any case to be not more than sixty (60) days prior to the date on which the particular action, requiring such determination of stockholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders, the date on which notice of the meeting is mailed shall be the record date for such determination of stockholders. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof. B. For the purpose of determining the stockholders entitled to receive payment of any dividend, the Board of Directors shall fix in advance a date as the record date for such determination of stockholders, such date in any case to be not more than sixty (60) days prior to the date on which the particular action, requiring such determination of stockholders, is to be taken. If no record date is fixed for the determination of stockholders entitled to receive payment of a dividend, the date on which the resolution of the Board of Directors declaring such dividend is adopted shall be the record date for such determination of stockholders. 6. VOTING LISTS The officer or agent having charge of the stock transfer books for shares of the corporation shall make, at least ten (10) days before each meeting of stockholders, a complete list of the stockholders entitled to vote at such meetings, or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten (10) days prior to such meeting, shall be kept on file at the principal office of the corporation and shall be subject to inspection at any time during the usual business hours by any person who shall have been a stockholder of record for at least six (6) months immediately preceding his request to inspect the list or who shall be the holder of record of at least five (5%) of all the outstanding shares of the corporation. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any stockholder during the whole time of the meeting. The original stock transfer book shall be prima facie evidence as to who are the stockholders entitled to examine such list or transfer books or to vote at the meeting of stockholders. 7. QUORUM At any meeting of stockholders, thirty-three and one-half percent (33-1/2%) of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than said number of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time and notice shall be given to all shareholders. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. 8. PROXIES At all meetings of stockholders, a stockholder may vote by proxy executed in writing by the stockholder or by his duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. The Board of Directors, in advance of any annual or special meeting of the shareholders, may prescribe additional regulations concerning the manner of execution and filing of proxies and the validation of the same, which are intended to be voted at any such meeting. 9. VOTING A. General. Each stockholder entitled to vote in accordance with the terms and provisions of the Certificate of Incorporation and these Bylaws shall be entitled to one (1) vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder. Upon the demand of any stockholder, the vote for directors and upon any questions before the meeting shall be by ballot. All elections for directors shall be decided by majority vote except as otherwise provided by Certificate of Incorporation or the laws of this State. B. Voting by Pledge, Trustee, Fiduciary. Shares standing in the name of any persons as pledgee, trustee, or other fiduciary may be voted and all the rights incident thereto may be exercised only by the pledgee, trustee, or other fiduciary, in person or by proxy, and without proof of authority. However, when a trust company has caused shares to be registered in the name of one or more nominees of the trust company, such shares may be voted and all rights incident thereto may be exercised by such nominee or nominees without proof of authority. C. Voting Shares in Names of Two or More Persons. Shares standing in the names of two or more persons shall be voted or represented in accordance with the vote or consent of the majority of the persons in whose names the shares stand. If only one such person is present in person or by proxy, he may vote all the shares, and all the shares standing in the names of such persons are represented for the purpose of determining a quorum. This Bylaw applies to the voting of shares by two or more administrators, executors, trustees, or other fiduciaries, unless the instrument or order of court appointing them otherwise directs. 10. ORDER OF BUSINESS The order of business at all meetings of the stockholders shall be determined by the Chairman, President, or the Board of Directors. ARTICLE III - BOARD OF DIRECTORS 1. GENERAL POWER The business and affairs of the corporation shall be managed by its Board of Directors. The directors shall in all cases act as a Board. 2. NUMBER, TENURE AND QUALIFICATIONS The number of directors of the corporation shall be not less than three (3) nor more than fifteen (15). Each director shall hold office until the next annual meeting of stockholders, at which the class of directors of which he is a member is to be elected, and until his successor shall have been elected and qualified. The actual number of directors shall be established by the Board. 3. REGULAR MEETINGS A regular meeting of the directors shall be held without other notice than this Bylaw immediately after, and at the same place as, the annual meeting of the stockholders. The directors may provide, by resolution, the time and place for the holding of additional regular meetings without other notice than such resolution. 4. SPECIAL MEETINGS Special meetings of the directors may be called by or at the request of the Chairman, President, Secretary, or any two (2) directors. The person or persons authorized to call special meetings of the directors may fix the place for holding any special meeting of the directors called by them. 5. NOTICE Notice of any special meeting shall be given at least two (2) days prior thereto by written notice delivered personally, or by telegram or mailed to each director at his business address. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 6. QUORUM At any meeting of the directors a majority of those elected and currently serving shall constitute a quorum for the transaction of business, but if less than said number is present at a meeting a majority of the directors present may adjourn the meeting from time to time without further notice. 7. MANNER OF ACTING The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the directors. 8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board may be filled by a vote of a majority of the directors then in office, although less than a quorum exists. A director elected to fill a vacancy caused by resignation, death or removal, shall be elected to hold office for the unexpired term of his predecessor. 9. REMOVAL OF DIRECTORS Any or all of the directors may be removed for cause by vote of the stockholders or by action of the Board. Directors may be removed without cause only by action of the stockholders. 10. RESIGNATION A director may resign at any time by giving written notice to the Board, the President or the Secretary of the corporation. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the Board, and the acceptance of the resignation shall not be necessary to make it effective. 11. COMPENSATION The directors may be paid their expenses of attendance at each meeting of the Board of Directors or Committee thereof and may be paid a fixed sum for attendance at each such meeting or a stated salary or fee as a director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation thereof. 12. PRESUMPTION OF ASSENT A director of the corporation who is present at a meeting of the directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 13. COMMITTEES A. Executive Committee. The Board of Directors may appoint from among its members an Executive Committee of not less than two (2) nor more than seven (7) members, one of whom shall be the President, and shall designate one or more of its members as alternates to serve as a member or members of the Executive Committee in the absence of a regular member or members. The Board of Directors reserves to itself alone the power to approve an amendment to the Articles of Incorporation; approve a plan of merger or consolidation; approve a plan or exchange under which the corporation would be acquired; approve the sale, lease or exchange or the mortgage or pledge for consideration other than money of all or substantially all of the property and assets of the corporation other than in the regular course of business; approve the voluntary dissolution of the Company or revocation of voluntary dissolution proceedings. Subject to the foregoing limitations, the Executive Committee shall possess and exercise all other power of the Board of Directors during the intervals between meetings. B. Other Committees. The Board of Directors may appoint such other Committees from among its members as the Board desires. All such Committees shall serve at the pleasure of the Board and shall have such duties, powers and responsibilities as set forth in the resolution establishing same. 14. ALTERNATIVE METHODS OF CONDUCTING BUSINESS A. Action by Consent of Board without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any Committee thereof may be taken without a meeting if all members of the Board or Committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or Committee. B. Participation Through Usage of Teleconferencing Equipment. Members of the Board of Directors or any Committee designated thereby may participate in a meeting of such Board or Committee by means of a conference telephone or television or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. When such meeting is conducted by means of a conference telephone, television or similar communications equipment, a written record shall be made of the action(s) taken at such meeting. ARTICLE IV - OFFICERS 1. NUMBER The officers of the corporation shall be a President, one or more Executive Vice Presidents, one or more Vice Presidents, a Secretary and a Treasurer, each of whom shall be elected by the directors. Such other officers and assistant officers as may be deemed necessary may be elected or appointed by the directors. 2. ELECTION AND TERM OF OFFICE The officers of the corporation to be elected by the directors shall be elected annually at the first meeting of the Board of Directors held after each annual meeting of the stockholders. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. 3. REMOVAL Any officer or agent elected or appointed by the directors may be removed by the directors whenever, in their judgment, the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. 4. VACANCIES A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the directors for the unexpired portion of the term. 5. CHAIRMAN The Chairman of the Board of Directors shall be the Chief Executive Officer of the corporation and, subject to the directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the stockholders and of the directors. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts, or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the directors or by these Bylaws to some other officer of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of Chairman and such other duties as may be prescribed by the directors from time to time. The Chairman shall have the authority to remove any corporate officer from office when, in his sole discretion, the removal would be in the best interests of the corporation. 6. PRESIDENT The President shall be the Chief Operating Officer of the corporation and, subject to the directors and the Chief Executive Officer, shall in general supervise and control all of the business operations of the corporation. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the directors from time to time. 7. EXECUTIVE VICE PRESIDENT In the absence of the President or in the event of his death, inability or refusal to act, an Executive Vice President shall perform the duties of the President, and when so acting, shall have all the power of and be subject to all the restrictions upon the President. The Executive Vice President shall perform such other duties as from time to time may be assigned to him by the President or directors. 8. VICE PRESIDENT The Vice President shall be elected by the Board of Directors and serve at their request. The Vice President shall perform such duties as shall be designated by the Board of Directors or the President and shall report to the President unless he designates another officer or Committee to receive said reports. 9. SECRETARY The Secretary shall keep the minutes of the stockholders and of the directors' meetings in one or more books provided for that purpose, see that all notices are duly given in accordance with the provisions of these Bylaws and keep a register of the post office address of each stockholder which shall be furnished to the Secretary by such stockholder, have general charge of the stock transfer books of the corporation and in general perform all duties incident to the office of the Secretary and such other duties as from time to time may be assigned to him by the President or by the directors. One or more assistant secretaries may be appointed by the Board of Directors to execute duties incident to the Office of Secretary in the absence of the Secretary. 10. TREASURER If required by the directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with surety or sureties as the directors shall determine. He shall have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for monies due and payable to the corporation from any source whatsoever, and deposit all such monies in the name of the corporation in such bank, trust companies or other depositories as shall be selected in accordance with these Bylaws and in general perform all of the duties incident to the office of the Treasurer and such other duties as from time to time may be assigned to him by the President or by the directors. 11. SALARIES The salaries of the officers shall be fixed from time to time by the directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS 1. CONTRACTS The directors may authorize any officer of officers, agent or agents to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. 2. LOANS No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the directors or in accordance with policy adopted from time-to-time or authority delegated by the Board of Directors. 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the directors. 4. DEPOSITS All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the directors may select. 5. EXERCISE OF RIGHTS AS STOCKHOLDER Unless otherwise ordered by the Board of Directors, the Chairman of the Board, President, Secretary, or a Vice President thereunto duly authorized on behalf of the Company to attend and to vote at any meeting of stockholders of any corporation in which this Company may hold stock and may exercise on behalf of this company any and all of the rights and powers incident to the ownership of such stock at any such meeting, and shall have power and authority to execute and deliver proxies and consents on behalf of this Company of the rights and powers incident to the ownership of such stock. The Board of Directors, from time to time, may confer like powers upon any other person or persons. 6. FACSIMILE SIGNATURES Facsimile signatures of any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a Committee therefore. ARTICLE VI - CERTIFICATES FOR SHARES AND TRANSFER 1. CERTIFICATES FOR SHARES Certificates representing shares of the corporation shall be in such form as shall be determined by the directors. Such certificates shall be signed by the Chairman or President and by the Secretary or Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the stockholders, the number of shares and date of issue shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificates shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate, a new one may be issued therefor upon such terms and indemnity to the corporation as the directors may prescribe. 2. TRANSFER OF SHARES A. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto and cancel the old certificate; every such transfer shall be entered on the transfer book of the corporation which shall be kept at its principal office or at the office of a transfer agent appointed by the corporation. B. The corporation shall be entitled to treat the holder of record of any shares as the holder in fact thereof, and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of this state. ARTICLE VII - FISCAL YEAR The Fiscal Year of the corporation shall begin on the first day of January in each year. ARTICLE VIII - DIVIDENDS The directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law. ARTICLE IX - CORPORATE RECORDS 1. INSPECTION OF RECORDS BY SHAREHOLDERS The share register, or duplicate share register, shall be open to inspection by a shareholder upon proper written request for a purpose reasonably related to his interests as a shareholder. Such inspection by a shareholder or holder of a voting trust certificate may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. Shareholders acting pursuant to this provision shall request inspection by writing to the President or Secretary of the corporation, specifying the purpose for such inspection under oath, and sending a copy of such request to the corporation's General Counsel. 2. INSPECTION OF RECORDS BY DIRECTORS Every director shall have the right at any reasonable time to inspect all books, records, documents of every kind, and the physical properties of the corporation, and also of its subsidiary corporations, domestic or foreign. Such a right must be reasonably related, as determined by a majority of the Board of Directors then in office to the director's position and responsibilities as a director of the corporation. Such inspection by a director may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. ARTICLE X - SEAL The directors may provide for a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation, the state of incorporation, and the year of incorporation. ARTICLE XI - WAIVER OF NOTICE Unless otherwise provided by law, whenever any notice is required to be given to any stockholder or director of the corporation under the provisions of these Bylaws or under the provisions of the Certificate of Incorporation, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XII - AMENDMENTS A. These Bylaws may be altered, amended, or repealed, and new Bylaws may be adopted by a vote of the stockholders representing a majority of all the shares issued and outstanding, at any annual stockholders' meeting or at any special stockholders' meeting when the proposed amendment has been set out in the notice of such meeting or by written consent signed by all stockholders of record. B. These Bylaws may be altered, amended or repealed and new Bylaws adopted without shareholder approval by the affirmative vote of a majority of the Board of directors provided, however, that the Board shall not have the power to alter, amend or repeal any Bylaw adopted by the shareholders pursuant to paragraph A above of said Bylaws, if such Bylaw, when adopted, contains a clause therein that it may not be altered, amended, or repealed by the Board of Directors. ARTICLE XIII - INDEMNIFICATION A. Action, etc. Other Than by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful. B. Actions, etc., by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of this duty to the corporation unless and only to the extent that the court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability by in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other such court shall deem proper. C. Determination of Indemnification. Any indemnification under items A or B (unless ordered by a court) shall be made by the corporation unless a determination is reasonably and promptly made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in written opinion, or (iii) by the stockholders, that such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe that his conduct was unlawful. D. Indemnification Against Expenses of Successful Party. Notwithstanding the other provisions of this Article, to the extent that an agent of the corporation has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any proceeding or in defense of any claim, issue or matter therein, such agent shall be indemnified against all expenses incurred in connection therewith. E. Advances of Expenses. Except as limited by item F of this Article, expenses incurred in any proceeding shall be paid by the corporation in advance of the final disposition of such proceeding, if the agent shall undertake to repay such amount in the event that it is ultimately determined, as provided herein, that such person is not entitled to indemnification. Notwithstanding the foregoing, no advance shall be made by the corporation if a determination is reasonably and promptly made by the Board of Directors by a majority vote of quorum of disinterested directors, or (if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs) by independent legal counsel in a written opinion, that, based upon the facts known to the Board or counsel at the time such determination is made, such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Board or Independent legal counsel reasonably determines that such person deliberately breached his duty to the corporation or its shareholders. F. Right of Agent to Indemnification Upon Application; Procedure Upon Application. Any indemnification under items B, C, and D, or advance under item E of this Article, shall be made promptly, and in any event within ninety days, upon the written request of the agent, unless with respect to applications under items B, C, or E, a determination is reasonably and promptly made by the Board of Directors by a majority vote or a quorum of disinterested directors that such agent acted in a manner set forth in such items as to justify the corporation's not indemnifying or making an advance to the agent. In the event no quorum of disinterested directors is obtainable, the Board of Directors shall promptly direct that independent legal counsel shall decide whether the agent acted in the manner set forth in such Sections as to justify the corporation's not indemnifying or making an advance to the agent. The right to indemnification or advances as granted by this Article shall be enforceable by the agent in any court of competent jurisdiction, if the Board or independent legal counsel denies the claim, in whole or in part, or if no disposition of such claim is made within ninety days. The agent's expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the corporation. G. Other Rights and Remedies. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. All rights to indemnification under this Article shall be deemed to be provided by a contract between the corporation and the director, officer, employee or agent who serves in such capacity at any time while these Bylaws and other relevant provisions of the general corporation law and other applicable law, if any, are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing. H. Insurance. Upon resolution passed by the Board, the corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article. I. Constituent Corporations. For the purposes of this Article, references to the "the corporation" shall include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would if he had served the resulting or surviving corporation in the same capacity. J. Other Enterprises. Fines, and Serving at Corporation's Request. For the purposes of this Article, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; any person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Article. K. Savings Clause. If this Article or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each agent of the corporation as to expenses (including attorneys' fees), judgments, fines and amounts paid in a settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including a grand jury proceeding and an action by the corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated or by any other applicable law. CERTIFICATE OF SECRETARY I, the undersigned, do hereby certify: 1. That I am Sharon G. Province, the duly elected Secretary of ERCE Hydro Partner II, Inc., a Delaware corporation. 2. That the Board of Directors duly and unanimously adopted the foregoing Bylaws by written consent without a meeting on November 29, 1990. IN WITNESS WHEREOF, under penalty of perjury, I have hereunto subscribed my name this 29th day of November, 1990. /s/ Sharon G. Province ------------------------------------ Sharon G. Province, Secretary EX-99.T3B18 96 exhibit_t3b-18.txt Exhibit T3B-18 CERTIFICATE AND AGREEMENT OF LIMITED PARTNERSHIP OF HENNEPIN COUNTY ENERGY RESOURCE CO., L.P. THE UNDERSIGNED are executing this Certificate and Agreement of Limited Partnership (the "Certificate and Agreement") for the purpose of forming a limited partnership (the "Partnership" pursuant to the provisions of the Delaware Revised Uniform Limited Partnership Act, 6 Del. - C.- Sections 17-101 et seq. (the "Delaware Act"), and do hereby certify and agree as follows: 1. Name. The name of the Partnership shall be Hennepin County Energy Resource Co., L.P., or such other name as the General Partners may from time to time hereafter designate. 2. Definitions. In addition to terms otherwise defined herein, the following terms are used herein as defined below: "Event of withdrawal of a General Partner" means an event that causes a person or entity to cease to be General Partner as provided in Section 17-402 of the Delaware Act. "General Partners" means the Initial General Partner and all other persons or entities admitted as General Partners pursuant to this Certificate and Agreement, so long they remain General Partners. Reference to a "General Partner" means any one of the General Partners. "Initial General Partner" means Blount Energy Resource Corp. "Initial Limited Partners" means Louis A. Griffin. "Limited Partners" means the Initial Limited Partner and all other persons or entities admitted as additional or substituted Limited Partners pursuant to this Certificate and 1 Agreement, so long as they remain Limited Partners. Reference to a "Limited Partner" means any one of the Limited Partners. "Partners" means those persons or entities who from time to time are the General Partners and the Limited Partners. Reference to a "Partner" means any one of the Partners. 3. Purpose. The purpose of the Partnership shall be to engage in any lawful business which may be engaged by limited partnership organized under the Delaware Act. 4. Offices. (a) The office of the Partnership, and such additional offices as the General Partners may determine to establish, shall be located at such place or places inside or outside the State of Delaware as the General Partners may designate from time to time. (b) The registered office of the Partnership in the State of Delaware is located at 1105 N. Market Street, P.O. Box 1347, Wilmington, New Castle County, Delaware 19899. The registered agent of the Partnership for service of process at such address is Delaware Corporation Organizers, Inc. 5. Partners. The name and business or residence address of each Partner of the Partnership, the General Partner(s) and the Limited Partner(s) being separately designated, are as set forth on Schedule I attached hereto. 6. Term. The term of the Partnership shall commence upon the filing of this Certificate and Agreement in the Office of the Secretary of State of Delaware and shall continue until termination of the Partnership in accordance with Section 14 of this Certificate and Agreement. 7. Management of the Partnership. (a) The General Partners have the exclusive right to manage the business of the Partnership, and shall have all powers and rights necessary, appropriate or advisable to effectuate and carry out the purposes and business of the Partnership and, in general, all powers 2 permitted to be exercised by a general partner under the laws of the State of Delaware. The General Partners may appoint, employ, or otherwise contract with any persons or entities for the transaction of the business of the Partnership or the performance of services for or on behalf of the Partnership, and the General Partners may delegate to any such person or entity such authority to act on behalf of the Partnership as the General Partners may from time to time deem appropriate. (b) Except as otherwise herein specifically provided, the duties and powers of the General Partners may be exercised by any one of the General Partners acting alone. (c) No Limited Partner, in his status as such, shall have the right to take part in the management or control of the business of the Partnership or to act for or bind the Partnership or otherwise to transact any business on behalf of the Partnership. 8. Capital Contributions. (a) The Initial General Partner and the Initial Limited Partner have each contributed Ten Dollars ($10.00) to the capital of the Partnership. The Initial General Partner and the Initial Limited Partner shall not be required to make any further contributions to the capital of the Partnership. Persons or entities hereafter admitted as General. Partners or Limited Partners of the Partnership shall make such contributions of cash, property or services to the Partnership as shall be determined by the General Partners at the time of each such admission. 9. Assignments of Limited Partner Interest. No Limited Partner may sell, assign, pledge or otherwise transfer or encumber his interest in the Partnership nor shall Limited Partner have the power to substitute an assignee in his place as a substituted Limited Partner without, in either event, having obtained the prior written consent of the General Partners. 10. Withdrawal. No Partner shall have the right to withdraw from the Partnership except with the consent of all of the General Partners and upon such terms and conditions as may be specifically agreed upon between the General Partners and the withdrawing 3 Partner; provided, however, that the Initial General Partner shall have the right to withdraw following the admission of one or more additional General Partners; and provided, further, that the Initial Limited Partner shall have the right to withdraw following the admission of one or more additional Limited Partners. Upon the withdrawal of the Initial General Partner and/or the Initial Limited Partner, or either of them, such Partners shall be entitled to receive a return of their respective capital contributions. The provisions hereof with respect to distributions upon withdrawal are exclusive and no Partner shall be entitled to claim any further or different distribution upon withdrawal under Section 17-604 of the Delaware Act or otherwise. 11. Additional Partners. The General Partners shall have the right to admit additional General Partners and additional Limited Partners upon such terms and conditions, at such time or times, and for such capital contributions as shall be determined by the General Partners. 12. Distributions. Except as provided in Section 10 hereof, no Partner has any right to receive distributions of cash or other property from the Partnership prior to dissolution. 13. Return of Capital. Except as provided in Section 10 hereof, no Partner has the right to receive, and the General Partners have absolute discretion to make, any distributions to a Partner which include a return of all or any part of such Partner's capital contribution, provided that upon the dissolution of the Partnership, the assets of the Partnership shall be distributed as provided in Section 17-804 of the Delaware Act. 14. Dissolution. Subject to the provisions of Section 15 of this Certificate and Agreement, the Partnership shall be dissolved and its affairs wound up and terminated upon the first to occur of the following: (a) December 31, 2024; 4 (b) The determination of all of the General Partners to dissolve the Partnership; or (c) The occurrence of an event of withdrawal of a General Partner or any other event causing a dissolution of the Partnership under Section 17-801 of the Delaware Act. 15. Continuation of the Partnership. Notwithstanding the provisions of Section 14(c) hereof, the occurrence of an event of withdrawal of a General Partner shall not dissolve the Partnership if at such time there are one or more remaining General Partners and any one or more of such remaining General Partners continue the business of the Partnership (any and all such remaining General Partners being hereby authorized to continue the business of the Partnership without dissolution). If upon the occurrence of an event of withdrawal of a general partner there shall be no remaining General Partner, the Partnership nonetheless shall not be dissolved and shall not be required to be wound up if, within ninety (90) days after the occurrence of such event of withdrawal, all remaining Partners agree in writing to continue the business of the Partnership and to the appointment, effective as of the date of withdrawal, of one or more additional General Partners. 16. Amendments. This Certificate and Agreement may be amended only upon the written consent of all Partners. IN WITNESS WHEREOF, the undersigned have duly executed this Certificate and Agreement as of November 13, 1984. Initial Limited Partner BLOUNT ENERGY RESOURCE CORP., A Delaware corporation By /s/ Louis A. Griffin --------------------------- Its Vice President Initial Limited Partner 5 /s/ Louis A. Griffin -------------------------------------- Louis A. Griffin 6 SCHEDULE I A. General Partners
Name & Address Capital Contribution -------------- -------------------- Blount Energy Resource Corp. $10.00 4520 Executive Park Drive Montgomery, Alabama 36116-1602
B. Limited Partners Name
Name & Address Capital Contribution - -------------- -------------------- Louis A. Griffin $10.00 4520 Executive Park Drive Montgomery, Alabama 36116-1602
7 EX-99.T3B19 97 exhibit_t3b-19.txt Exhibit T3B-19 OGDEN MARTIN SYSTEMS OF HILLSBOROUGH, INC. * * * * * BY - LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be located in the City of Plantation, Florida. Section 2. The corporation may also have offices at such other places both within and without the State of Florida as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held in the City of New York, State of New York, at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as may be determined by the board of directors, at which they shall elect by a plurality vote, a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice of the annual meeting stating the place, day and hour of the meeting shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. 1 The notice shall also set forth the purpose or purposes for which the meeting is called. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Florida as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of shareholders may be called at any time, for any purpose or purposes, by the board of directors or by such other persons as may be authorized by law. Section 3. Written or printed notice of a special meeting stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. The holders of a majority of the shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which 2 a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the articles of incorporation. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. ARTICLE V DIRECTORS Section 1. The number of directors shall be [four] Directors need not be residents of the State of Florida nor shareholders of the corporation. The directors, other than first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall I have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Vacancies and newly created directorships resulting from any increase in the number of directors may be filled by a majority of the directors then in office, though less than a quorum, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts 3 and things as are not by statute or by the articles of incorporation or by these bylaws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of Florida, at such place or places as they may from time, to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of Florida. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the' shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to, constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on three days' notice to each director,' either personally or by mail or by telegram; 4 special meetings shall be called by the president or secretary in like manner and on `like notice on the written request of two directors. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the articles of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the articles of incorporation. Members of the board of directors shall be deemed present at a meeting of such board if a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, is used. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the bylaws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the 5 committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. Section 2. In the absence or disqualification from voting of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of such absent or disqualified member. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of incorporation or of these by-laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors "may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the articles of incorporation or these bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall `be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of 6 directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be `fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any' office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at `all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other, contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 7 THE VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors' may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform' such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 8 THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his -transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 9 ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the president or a vice-president and the secretary or an assistant secretary of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full or summary statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and preferences between the shares of, each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued, by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and 10 conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFER OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books~ of the corporation. FIXING OF RECORD DATE Section 5. The board of directors may fix a date not more than sixty days prior to the date set for any meeting of the shareholders as the record date as of which the shareholders of record who have the right to and are entitled to notice of and to vote at such meeting and any adjournment thereof shall be determined. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Florida. 11 ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the articles of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to any provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Florida". The seal may 12 be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These bylaws may be altered, amended or repealed or new bylaws may be adopted by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board. 13 OGDEN MARTIN SYSTEMS OF HILLSBOROHGH, INC. Action by Unanimous Consent in Writing of the Sole Shareholder February 1, 1985 The undersigned, constituting the holder of all the outstanding shares of Ogden Martin Systems of Hilisborough, Inc., a Florida Corporation, by unanimous consent in writing pursuant to the authority of Section 607. 394 of the Florida General Corporation Act without the formality of convening a meeting, do hereby severally and collectively consent to the following action by the Corporation: RESOLVED, that Article V, Section 1 of the By-Laws of this Corporation be and hereby are amended to change the number of Directors from "four" to "not less than three nor more than five," and it is FURTHER RESOLVED, that the following persons be and are hereby elected Directors of, this Corporation to serve until the next annual meeting of shareholders and their successors are duly elected and qualified to serve: Donald A. Krenz Peter Thorner Robert E. Curry, Jr. David L. Sokol Salvatore S. Ferrara OGDEN MARTIN SYSTEMS, INC. BY /s/ Bruce W. Stone --------------------------------- 14 Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board at directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: 15 "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, be shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him. and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further 16 RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. Richard Ablon /s/ Scott G. Mackin - ------------------------------------ -------------------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ Bruce W. Stone ------------------------------- BRUCE W. STONE 17 EX-99.T3B20 98 exhibit_t3b-20.txt Exhibit T3B-20 C-E Huntington Resource Recovery One Corp. * * * * * BY- LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in the City of Stamford, State of Connecticut, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1988, shall be held on the fourth Thursday of April if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 A.M., or at such other date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than two nor more than ten. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on three days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by--laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by--laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice--president, a secretary and a treasurer. The board of directors may also choose additional vice--presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice--presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice--presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice--chairman of the board of directors, or the president or a vice--president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Upon the face or back of each stock certificate issued to represent any partly paid shares, or upon the books and records of the corporation in the case of uncertificated partly paid shares, shall be set forth the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by--laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by--laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by--laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by--laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. RICHARD ABLON /s/ SCOTT G. MACKIN ---------------------- ---------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ BRUCE W. STONE ------------------ BRUCE W. STONE EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. EXHIBIT D Ogden Acquisition Company Ogden Environmental services, Inc. Ogden Environmental Services of Houston, Inc. EX-99.T3B21 99 exhibit_t3b-21.txt EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin System of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin System of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin System of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990 The undersigned, constituting the holder of all the outstanding shares of the corporations listed on Exhibits A, B, and C attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of the corporation listed on Exhibit A hereto be amended to change the number of directors of such corporation to "not less than three nor more than five"; and it is further RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit B hereto be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of each of the corporations listed on Exhibit C hereto to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott G. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all DOCUMENTS and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS, TNC. By: /s/ Scott G. Mackin --------------------------------- Scott G. Mackin First Executive Vice President EXHIBIT A Ogden Martin Systems of Indianapolis, Inc. EXHIBIT B Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, mc, Ogden Martin Systems of Huntsville, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C Ogden Marion Land Corp. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp, Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Indianapolis, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Martin Systems of Union, Inc. Exhibit T3B-21 OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY SEVEN CORP. ***** BY-LAWS ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. 2 Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than two nor more than ten. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. 3 MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on five days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. 4 COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. 5 REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. 6 Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 10. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES 7 Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors shall, in the absence or disability of the treasurer perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 8 ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a 9 new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or 10 for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders and/or by the board of directors, when such power is 11 conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 12 EX-99.T3B22 100 exhibit_t3b-22.txt Exhibit T3B-22 Ogden Martin Systems of Huntsville, Inc. * * * * * BY - LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be located in Montgomery, Alabama. Section 2. The corporation may also have offices at such other places both within and without the State of Alabama as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and time as shall be designated from time to time by the board of directors if not a legal holiday, and if a legal holiday, then on the next secular day following, at which they shall elect by a majority vote a board of directors, and transact such other business as may properly be brought 1 before the meeting. Section 3. Written or printed notice of the annual meeting stating the place, day and hour of the meeting shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, the secretary, or the officer or persons calling the meeting to each shareholder of record entitled to vote at such meeting. The notice shall also set forth the purpose or purposes for which the meeting is called if special action is proposed to be taken at the annual meeting, and if one of the purposes of an annual meeting is to increase the stock or bonded indebtedness of the corporation, such notice shall be delivered not less than thirty days before the date of the meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Alabama as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by 2 the president, the board of directors, or the holders of not less than one-tenth of all the shares entitled to vote at the meeting. Section 3. Written or printed notice of a special meeting stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If one of the purposes of a special meeting is to increase the stock or bonded indebtedness of the corporation, such notice shall be delivered not less than thirty days before the date of the meeting. Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the stockholders, holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business 3 except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the articles of incorporation. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Section 4. Any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect 4 to the subject matter thereof. ARTICLE V DIRECTORS Section 1. The number of directors shall be three (see 5/25/90 shareholder amendment). Directors need not be residents of the State of Alabama nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors. A director elected to fill a vacancy shall be elected to serve until the next annual meeting of shareholders. Any directorship to be filled by reason of an increase in the number of directors shall be filled by election at an annual meeting or at a special meeting of shareholders called for that purpose. A director elected to fill a newly created directorship shall serve until the next succeeding annual meeting of shareholders and until his successor shall have been 5 elected and qualified. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of Alabama, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of Alabama. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall 6 be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. 7 Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the articles of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the articles of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the by-laws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when 8 required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of incorporation or of these by-laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the articles of incorporation or these by-laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a 9 vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall 10 have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, 11 notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the 12 corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time 13 to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the chairman of the board, president, an executive vice-president, a vice-president or the treasurer and the secretary, an assistant vice-president, an assistant secretary or an assistant treasurer, of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers upon a 14 certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a 15 new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. CLOSING OF TRANSFER BOOKS Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, fifty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than fifty days and, in case of a meeting of shareholders not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or 16 shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the board of directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Alabama. LIST OF SHAREHOLDERS Section 7. The officer or agent having charge of the transfer books for shares shall make, at least ten days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, or any adjournment thereof arranged in alphabetical order, with the 17 address of each and the number of shares held by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the principal office of the corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original stock transfer book, shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer book or to vote at any meeting of the shareholders. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the articles of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to any provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve 18 fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed IT thereon the name of the corporation, the year of its organization LIJ and the words "Corporate Seal, Alabama". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted at any regular or special meeting of shareholders at which a quorum is present or 19 represented, by the affirmative vote of a majority of the stock entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting. The board of directors shall not make or alter any by-law establishing what constitutes a quorum at shareholders' meetings. 20 BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990 The undersigned, constituting the holder of all the outstanding shares of the corporations listed on Exhibits A, B, and C attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of the corporation listed on Exhibit A hereto be amended to change the number of directors of such corporation to "not less than three nor more than five"; and it is further RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit B hereto be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of each of the corporations listed on Exhibit C hereto to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott C. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their 21 opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS, INC. By:___________________________ Scott G. Mackin First Executive Vice President 22 EXHIBIT A Ogden Martin Systems of Indianapolis, Inc. 23 EXHIBIT B Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntsville, Inc. NRC/Recovery Group, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 24 EXHIBIT C Ogden Marion Land Corp. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Indianapolis, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. 25 OMS Equity of Stanislaus, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Martin Systems of Union, Inc. 26 BY-LAWS AMENDMENT OGDEN MARTIN SYSTEMS OF HUNTSVILLE, INC. Action by Unanimous Consent in Writing of the Sole Shareholder in Lieu of the 1988 Annual Meeting August 1, 1988 The undersigned, constituting the holder of all the outstanding shares of Ogden Martin Systems of Huntsville, Inc., an Alabama corporation, by unanimous consent in writing pursuant to the authority of Section 38 of the Alabama Business Corporation Act, without the formality of convening a meeting, does hereby consent to the following actions by the Corporation: RESOLVED, that the appropriate section of this Corporation's by-laws be amended, so that the number of directors of this Corporation as it appears in said by-laws shall be "five"; and it is further RESOLVED, that the following persons be and are hereby elected Directors of this Corporation to serve until the next annual meeting of shareholders and their successors are duly elected and qualified to serve: Ralph E. Ablon Robert M. DiGia Scott C. Mackin Maria P. Monet David L. Sokol and it is further RESOLVED, that the officers of this Corporation and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. 27 OGDEN MARTIN SYSTEMS, INC. By: ___________________________________ J. L. Effinger, Assistant Secretary 28 BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, 13, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section 29 pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: 30 "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R.Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further 31 RESOLVED, that effective as of this date, Scott C. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia N. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. __________________________________ ________________________________ R. RICHARD ABLON SCOTT G. MACKIN ______________________ BRUCE W. STONE 32 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. 33 EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 34 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. 35 EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. 36 EX-99.T3B23 101 exhibit_t3b-23.txt Exhibit T3B-23 BYLAWS OF ERCE HYDRO, INC. ARTICLE I - OFFICE The corporation shall maintain a principal office in the Commonwealth of Virginia, County of Fairfax, and may also have an office or offices at such other place or places, either within or without the State of Delaware, as may be designated by the Board of Directors. ARTICLE II - STOCKHOLDERS 1. ANNUAL MEETING An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place on such date, and at such time as the Board of Directors shall each year fix, which date shall be within fourteen (14) months subsequent to the last annual meeting of stockholders. 2. SPECIAL MEETING Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President, by the Board of Directors, or by the holders of not less than ten percent (10%) of the outstanding voting stock of the corporation. The special meeting will then be held on a date established by the President not more than ninety (90) days after the Secretary has notified the Board of Directors. For all special meetings, the President or the Board of Directors shall have the power to determine (within the limitations permitted by law) the form, content, means of communication and timing of notice of such meeting. 3. PLACE OF MEETING 1 The directors may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for meeting or any annual meeting or for any special meeting. A waiver of notice signed by all stockholders entitled to vote at a meeting may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for holding such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation. 4 NOTICE OF MEETING Written or printed notice stating the place, day and hour of the meeting, and accompanied by an agenda of the meeting shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary or the officer or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the stockholder at his address as it appears on the stock transfer books of the corporation, with postage therein prepaid; provided that written notice of a meeting shall be delivered, as set forth above, not less than twenty (20) days before the date of such meeting if action is to betaken on a plan contemplating merger or consolidation of the corporation with another corporation. 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE A. For the purpose of determining the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or in order to make a determination of stockholders for any proper purpose, except for the payment of dividends, the Board of Directors of the corporation may provide that the stock transfer books shall be closed for stated period but not to exceed, in any case, sixty (60) days. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of stockholders, such date in any case to be not more than sixty (60) days prior to the date on which the particular action, 2 requiring such determination of stockholders, is to be taken. if the stock transfer books are not closed and no record date is fixed for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders, the date on which notice of the meeting is mailed shall be the record date for such determination of stockholders. When a determination of stockholders entitled to vote at any meeting of stockholders been made as provided in this section, such determination to any adjournment thereof. B. For the purpose of determining the stockholders entitled to receive payment of any dividend, the Board of Directors shall fix in advance a date as the record date for such determination of stockholders, such date in any case to be not more than sixty (60) days prior to the date on which the particular action, requiring such determination of stockholders is to be taken. If no record date is fixed for the determination of stockholders entitled to receive payment of a dividend, the date on which the resolution of the Board of Directors declaring such dividend is adopted shall be the record date for such determination of stockholders. 6. VOTING LISTS The officer or agent having charge of the stock transfer books for shares of the corporation shall make, at least ten (10) days before each meeting of stockholders, a complete list of the stockholders entitled to vote at such meetings or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten (10) days prior to such meeting, shall be kept on file at the principal office of the corporation and shall be subject to inspection at any time during the usual business hours by any person who shall have been a stockholder of record for at least six (6) months immediately preceding his request to inspect the list or who shall be holder of record of at least five (5%) of all the outstanding shares of the corporation. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any stockholder during the whole time of the meeting. The original stock transfer book shall be prima facie evidence as to who are the 3 stockholders entitled to examine such list or transfer books or to vote at the meeting of stockholders. 7. QUORUM At any meeting of stockholders, thirty-three and one-half percent (33-1/2%) of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than said number of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time and notice shall be given to all shareholders. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. 8. PROXIES At all meetings of stockholders, a stockholder may vote by proxy executed in writing by the stockholder or by his duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. The Board of Directors, in advance of any annual or special meeting of the shareholders, may prescribe additional regulations concerning the manner of execution and filing of proxies and the validation of the same, which are intended to be voted at any such meeting. 9. VOTING A. General. Each stockholder entitled to vote in accordance with the terms and provisions of the Certificate of Incorporation and these Bylaws shall be entitled to one (1) vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder. Upon the demand of any stockholder, the vote for directors and upon any questions before the meeting shall be by ballot. All elections for directors shall be decided by majority vote except as otherwise provided by Certificate of Incorporation or the laws of this State. 4 B. Voting by Pledge, Trustee, Fiduciary. Shares standing in the name of any persons as pledgee, trustee, or other fiduciary may be voted and all the rights incident thereto may be exercised only by the pledgee, trustee, or other fiduciary, in person or by proxy, and without proof of authority. However, when a trust company has caused shares to be registered in the name of one or more nominees of the trust company, such shares may be voted and all rights incident thereto may be exercised by such nominee or nominees without proof of authority. C. Voting Shares in Names of Two or More Persons. Shares standing in the names of two or more persons shall be voted or represented in accordance with the vote or consent of the majority of the persons in whose names the shares stand. If only one such person is present in person or by proxy, he may vote all the shares, and all the shares standing in the names of such persons are represented for the purpose of determining a quorum. This Bylaw applies to the voting of shares by two or more administrators, executors, trustees, or other fiduciaries, unless the instrument or order of court appointing them otherwise directs. 10. ORDER OF BUSINESS The order of business at all meetings of the stockholders shall be determined by the Chairman, President, or the Board of Directors. ARTICLE III - BOARD OF DIRECTORS 1. GENERAL POWER The business and affairs of the corporation shall be managed by its Board of Directors. The directors shall in all cases act as a Board. 2. NUMBER, TENURE AND QUALIFICATIONS 5 The number of directors of the corporation shall be not less than three (3) nor more than fifteen (15). Each director shall hold office until the next annual meeting of stockholders, at which the class of directors of which he is a member is to be elected, and until his successor shall have been elected and qualified. The actual number of directors shall be established by the Board. 3. REGULAR MEETINGS A regular meeting of the directors shall be held without other notice than this Bylaw immediately after, and at the same place as, the annual meeting of the stockholders. The directors may provide, by resolution, the time and place for the holding of additional regular meetings without other notice than such resolution. 4. SPECIAL MEETINGS Special meetings of the directors may be called by or at the request of the Chairman, President, Secretary, or any two (2) directors. The person or persons authorized to call special meetings of the directors may fix the place for holding any special meeting of the directors called by them. 5. NOTICE Notice of any special meeting shall be given at least two (2) days prior thereto by written notice delivered personally, or by telegram or mailed to each director at his business address. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 6 QUORUM At any meeting of the directors a majority of those elected and currently serving shall constitute a quorum for the transaction of business, but if less than said number is 6 present at a meeting a majority of the directors present may adjourn the meeting from time to time without further notice. 7. MANNER OF ACTING The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the directors. 8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board may be filled by a vote of a majority of the directors then in office, although less than a quorum exists. A director elected to fill a vacancy caused by resignation, death or removal, shall be elected to hold office for the unexpired term of his predecessor. 9. REMOVAL OF DIRECTORS Any or all of the directors may be removed for cause by vote of the stockholders or by action of the Board. Directors may be removed without cause only by action of the stockholders. 10. RESIGNATION A director may resign at any time by giving written notice to the Board, the President or the Secretary of the corporation. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the Board, and the acceptance of the resignation shall not be necessary to make it effective. 11. COMPENSATION The directors may be paid theft expenses of attendance at each meeting of the Board of Directors or Committee thereof and may be paid a fixed sum for attendance at each such meeting or a stated salary or fee as a director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation thereof. 12. PRESUMPTION OF ASSENT 7 A director of the corporation who is present at a meeting of the directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 13. COMMITEES A. Executive Committee. The Board of Directors may appoint from among its members an Executive Committee of not less than two (2) nor more than seven (7) members, one of whom shall be the President, and shall designate one or more of its members as alternates to serve as a member or members of the Executive Committee in the absence of a regular member or members. The Board of Directors reserves to itself alone the power to approve an amendment to the Articles of Incorporation; approve a plan of merger or consolidation; approve a plan or exchange under which the corporation would be acquired; approve the sale, lease or exchange or the mortgage or pledge for consideration other than money of all or substantially all of the property and assets of the corporation other than in the regular course of business; approve the voluntary dissolution of the Company or revocation of voluntary dissolution proceedings. Subject to the foregoing limitations, the Executive Committee shall possess and exercise all other power of the Board of Directors during the intervals between meetings. B. Other Committees. The Board of Directors may appoint such other Committees from among its members as the Board desires. All such Committees shall serve at the pleasure of the Board and shall have such duties, powers and responsibilities as set forth in the resolution establishing same. 14. ALTERNATE WE METHODS OF CONDUCTING BUSINESS 8 A. Action bv Consent of Board without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any Committee thereof may be taken without a meeting if all members of the Board or Committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or Committee. B. Participation Through Usage of Teleconferencing Equipment Members of the Board of Directors or any Committee designated thereby may participate in a meeting of such Board or Committee by means of a conference telephone or television or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. When such meeting is conducted by means of a conference telephone, television or similar communications equipment, a written record shall be made of the action(s) taken at such meeting. ARTICLE IV - OFFICERS 1. NUMBER The officers of the corporation shall be a President, one or more Executive Vice Presidents, one or more Vice Presidents, a Secretary and a Treasurer, each of whom shall be elected by the directors. Such other officers and assistant officers as may be deemed necessary may be elected or appointed by the directors. 2. ELECTION AND TERM OF OFFICE The officers of the corporation to be elected by the directors shall be elected annually at the first meeting of the Board of Directors held after each annual meeting of the stockholders. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. 3. REMOVAL 9 Any officer or agent elected or appointed by the directors may be removed by the directors whenever, in their judgment, the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. 4. VACANCIES A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the directors for the unexpired portion of the term. 5. CHAIRMAN The Chairman of the Board of Directors shall be the Chief Executive Officer of the corporation and, subject to the directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the stockholders and of the directors. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts, or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the directors or by these Bylaws to some other officer of the corporation, or shall be required by law to be otherwise signed or executed, and in general shall perform all duties incident to the office of Chairman and such other duties as may be prescribed by the directors from time to time. The Chairman shall have the authority to remove any corporate officer from office when, in his sole discretion, the removal would be in the best interests of the corporation. 6. PRESIDENT The President shall be the Chief Operating Officer of the corporation and, subject to the directors and the Chief Executive Officer, shall in general supervise and control all of the business operations of the corporation. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly 10 delegated by the directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the directors from time to time. 7. EXECUTIVE VICE PRESIDENT In the absence of the President or in the event of his death, inability or refusal to act, an Executive Vice President shall perform the duties of the President, and when so acting, shall have all the power of and be subject to all the restrictions upon the President The Executive Vice President shall perform such other duties as from time to time may be assigned to him by the President or directors. 8. VICE PRESIDENT The Vice President shall be elected by the Board of Directors and serve at their request. The Vice President shall perform such duties as shall be designated by the Board of Directors or the President and shall report to the President unless he designates another officer or Committee to receive said reports. 9. SECRETARY The Secretary shall keep the minutes of the stockholders and of the directors' meetings in one or more books provided for that purpose, see that all notices are duly given in accordance with the provisions of these Bylaws and keep a register of the post office address of each stockholder which shall be furnished to the Secretary by such stockholder, have general charge of the stock transfer books of the corporation and in general perform all duties incident to the office of the Secretary and such other duties as from time to time may be assigned to him by the President or by the directors. One or more assistant secretaries may be appointed by the Board of Directors to execute duties incident to the Office of Secretary in the absence of the Secretary. 10. TREASURER 11 If required by the directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with surety or sureties as the directors shall determine. He shall have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for monies due and payable to the corporation from any source whatsoever, and deposit all such monies in the name of the corporation in such bank, trust companies or other depositories as shall be selected in accordance with these Bylaws and in general perform all of the duties incident to the office of the Treasurer and such other duties as from time to time may be assigned to him by the President or by the directors. 11. SALARIES The salaries of the officers shall be fixed from time to time by the directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS 1. CONTRACTS The directors may authorize any officer of officers, agent or agents to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. 2. LOANS No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the directors or in accordance with policy adopted from time-to-time or authority delegated by the Board of Directors. 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such 12 manner as shall from time to time be determined by resolution of the directors. 4. DEPOSITS All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the directors may select. 5. EXERCISE OF RIGHTS AS STOCKHOLDER Unless otherwise ordered by the Board of Directors, the Chairman of the Board, President, Secretary, or a Vice President thereunto duly authorized on behalf of the Company to attend and to vote at any meeting of stockholders of any corporation in which this Company may hold stock and may exercise on behalf of this company any and all of the rights and powers incident to the ownership of such stock at any such meeting, and shall have power and authority to execute and deliver proxies and consents on behalf of this Company of the rights and powers incident to the ownership of such stock. The Board of Directors, from time to time, may confer like powers upon any other person or persons. 6. FACSIMILE SIGNATURES Facsimile signatures of any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a Committee therefore. ARTICLE VI - CERTIFICATES FOR SHARES AND TRANSFER 1 CERTIFICATES FOR SHARES Certificates representing shares of the corporation shall be in such form as shall be determined by the directors. Such certificates shall be signed by the Chairman or President and by the Secretary or Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the stockholders, the number of shares and date of issue shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificates shall 13 be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate, a new one may be issued therefor upon such terms and indemnity to the corporation as the directors may prescribe. 2. TRANSFER OF SHARES A. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto and cancel the old certificate; every such transfer shall be entered on the transfer book. of the corporation which shall be kept at its principal office or at the office of a transfer agent appointed by the corporation. B. The corporation shall be entitled to treat the holder of record of any shares as the holder in fact thereof, and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of this state. ARTICLE VII - FISCAL YEAR The Fiscal Year of the corporation shall begin on the first day of January in each year. ARTICLE VIII - DIVIDENDS The directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law. ARTICLE IX - CORPORATE RECORDS 1. INSPECTION OF RECORDS BY SHAREHOLDERS 14 The share register, or duplicate share register, shall be open to inspection by a shareholder upon proper written request for a purpose reasonably related to his interests as a shareholder. Such inspection by a shareholder or holder of a voting trust certificate may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. Shareholders acting pursuant to this provision shall request inspection by writing to the President or Secretary of the corporation, specifying the purpose for such inspection under oath, and sending a copy of such request to the corporation's General Counsel. 2. INSPECTION OF RECORDS BY DIRECTORS Every director shall have the right at any reasonable time to inspect all books, records, documents of every kind, and the physical properties of the corporation, and also of its subsidiary corporations, domestic or foreign. Such a right must be reasonably related, as determined by a majority of the Board of Directors then in office to the director's position and responsibilities as a director of the corporation. Such inspection by a director may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. ARTICLE X - SEAL The directors may provide for a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation, the state of incorporation, and the year of incorporation. ARTICLE XI- WAIVER OF NOTICE Unless otherwise provided by law, whenever any notice is required to be given to any stockholder or director of the corporation under the provisions of these Bylaws or under the provisions of the Certificate of Incorporation, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XII - AMENDMENTS 15 A. These Bylaws may be altered, amended, or repealed, and new Bylaws may be adopted by a vote of the stockholders representing a majority of all the shares issued and outstanding, at any annual stockholders' meeting or at any special stockholders' meeting when the proposed amendment has been set out in the notice of such meeting or by written consent signed by all stockholders of record. B. These Bylaws may be altered, amended or repealed and new Bylaws adopted without shareholder approval by the affirmative vote of a majority of the Board of directors provided, however, that the Board shall not have the power to alter, amend or repeal any Bylaw adopted by the shareholders pursuant to paragraph A above of said Bylaws, if such Bylaw, when adopted, contains a clause therein that it may not be therein, amended, or repealed by the Board of Directors. ARTICLE XIII - INDEMNIFICATION A. Action, etc. Other Than by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in 16 good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful. B. Actions, etc., by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of this duty to the corporation unless and only to the extent that the court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability by in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnify for such expenses which the Court of Chancery or other such court shall deem proper. C. Determination of Indemnification. Any indemnification under items A or B (unless ordered by a court) shall be made by the corporation unless a determination is reasonably and promptly made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in written opinion, or (iii) by the stockholders, that such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the 17 best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe that his conduct was unlawful. D. Indemnification Against Expenses of Successful Party. Notwithstanding the other provisions of this Article, to the extent that an agent of the corporation has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any proceeding or in defense of any claim, issue or matter therein, such agent shall be indemnified against all expenses incurred in connection therewith. E. Advances of Expenses. Except as limited by item F of this Article, expenses incurred in any proceeding shall be paid by the corporation in advance of the final disposition of such proceeding, if the agent shall undertake to repay such amount in the event that it is ultimately determined, as provided herein, that such person is not entitled to indemnification. Notwithstanding the foregoing, no advance shall be made by the corporation if a determination is reasonably and promptly made by the Board of Directors by a majority vote of quorum of disinterested directors, or (if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs) by independent legal counsel in a written opinion, that, based upon the facts known to the Board or counsel at the time such determination is made, such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Board or Independent legal counsel reasonably determines that such person deliberately breached his duty to the corporation or its shareholders. F. Right of Agent to Indemnification Upon Application; Procedure Upon Application. Any indemnification under items B,C, and D, or advance under item E of this Article, shall be made promptly, and in any event within ninety days, upon the written request of the 18 agent, unless with respect to applications under items B,C, or E, a determination is reasonably and promptly made by the Board of Directors by a majority vote or a quorum of disinterested directors that such agent acted in a manner set forth in such items as to justify the corporation's not indemnifying or making an advance to the agent In the event no quorum of disinterested directors is obtainable, the Board of Directors shall promptly direct that independent legal counsel shall decide whether the agent acted in the manner set forth in such Sections as to justify the corporation's not indemnifying or making an advance to the agent. The right to indemnification or advances as granted by this Article shall be enforceable by the agent in any court of competent jurisdiction, if the Board or independent legal counsel denies the claim, in whole or in part, or if no disposition of such claim is made within ninety days. The agent's expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the corporation. G. Other Rights and Remedies. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. All tights to indemnification under this Article shall be deemed to be provided by a contract between the corporation and the director, officer, employee or agent who serves in such capacity at any time while these Bylaws and other relevant provisions of the general corporation law and other applicable law, if any, are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing. H. Insurance. Upon resolution passed by the Board, the corporation may purchase and maintain insurance on behalf of any person who is or was a director, 19 officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article. I Constituent Corporations. For the purposes of this Article, references to the "the corporation" shall include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would if be had served the resulting or surviving corporation in the same capacity. J. Other Enterprises, Fines, and Serving at Corporation's Request. For the purposes of this Article, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; any person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Article. 20 K. Savings Cause. If this Article or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each agent of the corporation as to expenses (including attorneys' fees), judgments, fines and amounts paid in a settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including a grand jury proceeding and an action by the corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated or by any other applicable law. 21 EX-99.T3B24 102 exhibit_t3b-24.txt Exhibit T3B-24 MCI CONSULTING ENGINEERS, INC. BY-LAWS ARTICLE I OFFICES The executive offices of the corporation shall be in Davidson County, Tennessee, but the corporation may have other offices at such places as the Board of Directors may from time to time decide or as the business of the corporation may require. ARTICLE II MEETINGS OF SHAREHOLDERS Section 1. Annual Meeting. The annual meeting of the shareholders shall be held at the of the Chairman of the Board of Directors or President during each fiscal year on a date and at such time and place, either within or without the State of Tennessee, as may be selected by the Chairman, the President, or the Board of Directors and designated in the call of the meeting. Section 2. Special Meeting. Special meetings of the shareholders may be called at any time by the Chairman of the Board of Directors or President, the Board of Directors or the holder or holders of not less than one third (1/3) of the outstanding shares of stock then entitled to vote at such time and place, either within or without the State of Tennessee, as may be designated in the call of the meeting. Section 3. Notice of Meeting. Written notice stating the place, day and hour of annual and special meetings of shareholders shall be given to each shareholder, either personally or by to his last address of record with the corporation, not less than ten (10) nor more than sixty (60) days before the date of meeting. Notice of any special meeting of shareholders state the purpose or purposes for which the meeting is called and the person or persons calling the meeting. Notice of any annual or special meeting of shareholders may be waived by the person or persons entitled thereto by signing a written waiver of notice at any time before or after the meeting is completed, which waiver may be signed by a shareholder or by his attorney-in-fact or proxy holder. Section 4. Voting. At all meetings of shareholders, all shareholders of record shall be entitled to one vote for each share of stock standing in their name and may both either in person or by proxy. Proxies shall be filed with the Secretary of the meeting before being voted or counted for the purpose of determining the presence of a quorum. Section 5. Quorum. At all annual meetings of shareholders, a majority of the outstanding shares of stock entitled to vote, represented in person or by proxy, shall constitute a quorum for the transaction of business. At all special meetings of shareholders, one-third (1/3) of the shares of stock entitled to vote, represented in person or by proxy, shall constitute a quorum for the of business. The vote or of a majority of the shares at any in which a quorum is present or represented shall determine the action taken on any matter that may come before he meeting unless otherwise specifically required by law or by express provision of the charter or by-laws of the corporation. Section 6. Action by Consent Whenever the stockholders of the corporation are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by all of the persons or entities entitled to vote thereon. ARTICLE III DIRECTORS Section 1. Number and Qualifications. The business and affairs of the corporation shall be managed and controlled by a Board of Directors, who shall be not less than one (1) in number. Directors need not be shareholders of the corporation. Section 2. Election and Term of Office. The Directors shall be elected at the first meeting of shareholders and thereafter at the annual meetings of shareholders; but if any such annual meeting is not held or if the Directors are not elected at any such annual meeting, the Directors may be elected at any special meeting of shareholders. Directors shall be elected by a plurality of the votes cast. The Directors shall hold office until the next annual meeting of shareholders and thereafter until their respective successors have been elected and qualified. 2 Section 3. Meetings. Regular meetings of the Directors shall be held annually following the annual meeting of the shareholders. Special meetings of the Directors may be called at any time by the President or by any two Directors on at least two days' notice sent by any usual means of communication. Notice of any such meeting may be waived by the person or persons entitled thereto by signing a written waiver of notice at any time before or after the meeting is completed. Attendance of a Director at a meeting shall constitute a waiver of notice thereof unless such attendance is for the express purpose of objecting to such meeting. Any meeting of the Board of Directors may be held within or without the State of Tennessee at such place as may be by the person or persons calling the meeting. Section 4. Quorum. A majority of the total number of Directors then in office shall constitute a quorum for the transaction of business. The vote or action of a majority of the Directors present at any meeting at which a quorum is held shall decide any matter that may come before the meeting and shall be the act of the Board unless otherwise specifically required by law or by express provision of the charter or by-laws of the corporation. Section 5. Powers. Without limitation but by way of illustration, the Board of Directors shall have the power, without the necessity of obtaining the prior approval of the shareholders, to: (a) Purchase or otherwise acquire property, rights or privileges for the corporation, which the has power to at such prices and on such terms as the Board of Directors may deem proper, and to hold, improve, rent and lease same. (b) Pay for such property, rights or privileges in whole or in part, with money, stock, bonds, debentures or other securities of the corporation, or by delivery of other property of the corporation. (c) Create, make and issue mortgages, bonds, deeds of trust, trust agreements and negotiable or transferable instruments and securities, secured by mortgages or otherwise and to do every act and thing necessary to effectuate the same. (d) Declare dividends in such amounts and at such times as may be appropriate, subject always to the requirements of applicable Tennessee law. 3 (e) Vote all shares of stock owned by the corporation for all purposes allowed as a shareholder, including (without limitation) electing members of the Boards of Directors of its subsidiary corporations and adopting, amending, and repealing the bylaws of those subsidiaries. Section 6. Action by Consent. Any action required or permitted to be taken by the Directors of the corporation may be taken without a meeting on written consent, setting forth the action so taken, signed by all the Directors entitled to vote thereon. Section 7. Vacancies. Vacancies in the Board of Directors occurring for any reason, including an increase in the number of Directors, resignation, or the removal of any Director with or without cause, may be filled by vote of a majority of the Directors then in office although less than a quorum exists; but if the offices of a majority of the entire Board of Directors shall be vacant at the same time, such vacancies shall be filled only by vote of the shareholders. A Director elected to fill any vacancy shall hold office until the next annual meeting of shareholders and thereafter until his successor has been elected and qualified. Section 8. Removal and Resignation. Any or all of the Directors may be removed with or without cause, at any time, by vote of a majority of the outstanding shares of stock then entitled to vote. Any directors may resign at any time, such resignation to be made in writing and to take effect immediately or on such later date as may be specified therein without acceptance. Section 9. Committees. From time to time, a of the entire Board of Directors may by resolution appoint an executive committee or any other committee or committees for any purpose or purposes to the extent permitted by law, which committee or committees shall have such powers as shall be specified in the resolution of appointment. Section 10. Participation in Meetings. The member of the Board of Directors, or any committee appointed by the Board, may participate in a meeting of the Board or of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other; and participation in a meeting pursuant to such means constitute presence in person at such meeting. The Directors shall be promptly furnished a copy of the minutes of the Board of Directors' meetings. 4 ARTICLE IV OFFICERS Section 1. Designation. The officers of the corporation shall be a Chairman of the Board of Directors, a President, one or more Vice Presidents, a Secretary and a Treasurer. Any two of such offices may be held by the same person except the offices of President and Secretary or Chairman of the Board of Directors and Secretary. The Board may elect or appoint such other officers and assistant officers as may be deemed necessary. Section 2. Qualification. At any time, the Board of Directors may require any officer to give bond for the faithful performance of his duties in such amount, with such security and conditions as the Board of Directors may then prescribe. No person may hold more than two offices at any one time. Section 3. Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation and shall give general supervision and direction to the affairs of the corporation, subject to the direction of the Board of Directors. He shall preside at all meetings of the shareholders and the Board of Directors in accordance with these bylaws. Section 4. President. The President shall be the chief operating officer of the Corporation and shall be in charge of the day-to-day affairs of the corporation, subject to the direction of the Board of Directors and the Chairman of the Board of Directors. He shall preside at all meetings of the shareholders in the absence of the Chairman of the Board of Directors and shall act in the case of absence or disability of the Chairman of the Board of Directors. He shall perform such other duties as may from time to time be prescribed by the Board. Section 5. Vice President. The Vice President(s) shall be elected by the Board of Directors and serve at its request. The Vice President(s) shall perform such duties as shall be designated by the Board of Directors or the President and shall report to the President unless he designates another officer or committee to receive said reports. Section 6. Secretary. The Secretary shall keep the minutes of all meetings of the shareholders and the Board of Directors in appropriate books, and he shall attend to the giving of all notices for the corporation. He shall have charge of the seal and stock books 5 of the corporation and such other books and papers as the Board may direct, and he shall in general perform all duties incident to the office of Secretary of the corporation. He shall perform such other duties as may from time to time be prescribed by the Board. Section 7. Treasurer. The Treasurer shall have the care and custody of all funds and securities of the corporation, and he shall perform all duties incident to the office of Treasurer of the corporation. He shall perform such other duties as may from time to time be prescribed by the Board. Section 8. Election and Term of Office. The officers shall be elected or appointed at the regular meeting of the Board of Directors following the annual meeting of shareholders, provided that any vacancy or newly created office may be filled at a special meeting of the Board. The officers shall hold office at the pleasure of the Board, and any officer may be removed at any time by a majority of the entire Board. Unless otherwise determined by the Board, each officer shall hold office until the next regular meeting of the Board following the annual meeting of shareholders and thereafter until his successor has been elected or appointed and qualified. ARTICLE V SHARES Section 1. Certificates. The shares of the corporation shall be represented by certificates in such form as the Board of Directors may from time to time prescribe. Such certificates shall be numbered consecutively in the order in which they are issued, which numbering system may be separated by class or series if there ever be more than one class or series of shares. The certificates shall be signed by the President and Secretary unless the Board of Directors shall otherwise designate any two officers of the corporation for such purpose. Section 2. Record. The name and address of all persons to whom the shares of the corporation are issued, the number of shares, and the date of issue shall be entered on the books of the corporation. It shall be the duty of each shareholder to notify the corporation of his address. Section 3. Transfers. The shares of the corporation are transferable only on the books of the corporation by the registered holder thereof, either in person or by power of attorney, and upon delivery and surrender of the certificate 6 representing such shares properly endorsed for transfer. Certificates exchanged or surrendered shall be cancelled by the Secretary and placed in the corporate records. Section 4. Loss of Certificates. In case of the loss, mutilation or destruction of a certificate representing shares of the corporation, a duplicate certificate may be issued on such terms as the Board of Directors shall prescribe. ARTICLE VI NO PRE-EMPTIVE RIGHTS The shareholders shall not have any pre-emptive rights to acquire stock in the Corporation. ARTICLE VII SEAL Section 1. Authority to Adopt. The corporation may have a seal in such form as the Board of Directors may adopt, and the Board of Directors may from time to time change the form of the seal of the corporation. Section 2. Scroll Seal. In the event the Board shall not have adopted a seal of it if is inconvenient to use the adopted seal at any time, an authorized signature "Seal" enclosed made in the in of and on behalf of the corporation followed by the word or scroll shall be deemed the seal of the corporation. ARTICLE VIII FISCAL YEAR The fiscal year of the corporation shall end on December 31 of each year, but the Board of Directors may from time to time change the fiscal year of the corporation. ARTICLE IX AMENDMENTS The shareholders of the corporation may adopt new bylaws and may amend or repeal any or all of these bylaws at any annual 7 or special meeting by a vote of a majority of the outstanding shares of stock then entitled to vote; and also the Board of Directors may adopt new bylaws and may amend or repeal any or all of these bylaws by the vote of a majority of the entire Board, provided that the board shall make no amendment changing the number of Directors, and provided further that any bylaw adopted by the Board may be amended or repealed by the shareholders. 8 Exhibit T3B-24 CERTIFICATE OF SECRETARY I, the undersigned, do hereby certify: 1. That I am Sharon G. Province, the duly elected Secretary of MCI Consulting Engineers, Inc., a Tennessee corporation. 2. That the Board of Directors duly and unanimously adopted the foregoing Bylaws by written consent without a meeting on November 5, 1989. IN WITNESS WHEREOF, under penalty of perjury, I have hereunto subscribed my name this 5th day of November, 1989. ------------------------------- Sharon G. Province, Secretary EX-99.T3B25 103 exhibit_t3b-25.txt Exhibit T3B-25 OGDEN HYDRO OPERATIONS WEST, INC. I ***** BY-LAWS ***** ARTICLE I OFFICES Section 1. The registered office shall be in the City of Dover, County of Kent, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof 1 Exhibit T3B-25 Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place 2 Exhibit T3B-25 where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitled to vote 3 Exhibit T3B-25 thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder or record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in 4 Exhibit T3B-25 which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. 5 Exhibit T3B-25 ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall not be less than three nor more than six. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the 6 Exhibit T3B-25 directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting 7 Exhibit T3B-25 and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of 8 Exhibit T3B-25 business and the act of a majority of the directors present at any 7 meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such 9 Exhibit T3B-25 participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, 10 Exhibit T3B-25 redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS 11 Exhibit T3B-25 Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by- 12 Exhibit T3B-25 laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. The board of directors may also choose additional vice presidents, and one or more assistant secretaries and assistant treasurers. Any number 13 Exhibit T3B-25 of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all 14 Exhibit T3B-25 meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall 15 Exhibit T3B-25 perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined 16 Exhibit T3B-25 by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every 17 Exhibit T3B-25 six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of 18 Exhibit T3B-25 directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertified stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. 19 Exhibit T3B-25 LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of 20 Exhibit T3B-25 the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to 21 Exhibit T3B-25 any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on the books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting. pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital 22 Exhibit T3B-25 stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. 23 Exhibit T3B-25 FISCAL YEAR Section 5. The fiscal year of the corporation shall coincide with the calendar year unless otherwise fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director, officer, employee or agent of the Corporation or serves or served at the request of the Corporation any other 24 Exhibit T3B-25 enterprise as a director, officer, employee or agent against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any and all expenses (including attorneys' fees) incurred by any such person in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses if it shall ultimately be determined by a final judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent Corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or 25 Exhibit T3B-25 merger; the term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation. ARTICLE VII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or 26 Exhibit T3B-25 adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 27 EX-99.T3B26 104 exhibit_t3b-26.txt Exhibit T3B-26 BYLAWS Bylaws for the regulation, except as otherwise provided by statute or its Articles of Incorporation, of Imperial Power Services, Inc., a California Corporation ARTICLE I. OFFICES Section 1. Principal Office. The principal executive office of the corporation is hereby fixed and located at: 3211 Fifth Avenue, San Diego, California. The Board of Directors (herein called the "Board") is hereby granted full power and authority to change said principal executive office from one location to another. Section 2. Other Offices. Branch or subordinate offices may at any time be established by the Board at any place or places. ARTICLE II. SHAREHOLDERS Section 1. Place of Meetings. Meetings of shareholders shall be held either at the principal executive office of the corporation or at any other place within or without the State of California which may be designated either by the Board or by the written consent of all persons entitled to vote thereat, given either before or after the meeting and filed with the Secretary. Section 2. Annual Meetings. The annual meetings of shareholders shall be held on such date and at such time as may be fixed by the Board. Section 3. Special Meetings. Special meetings of the shareholders, for any purpose or purposes whatsoever, may be called at any time by the Board, the Chairman of the Board, the President, or by the holders of shares entitled to cast not less than 10 percent of the votes at such meetings. ARTICLE III. DIRECTORS Section 1. Powers. Subject to limitations of the Articles, these Bylaws, and of the California General Corporation Law as to action required to be approved by the shareholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board. Section 2. Number of Directors. The authorized number of directors shall be three until changed by amendment of the Articles. Section 3. Election and Term of Office. The directors shall be elected at each annual meeting of shareholders, but if any such annual meeting is not held or the directors are not elected thereat, the directors may be elected at any special meeting of shareholders held for 1 Exhibit T3B-26 that purpose. Each director shall hold office until the next annual meeting and until a successor has been elected and qualified. Section 4. Vacancies. Any director may resign effective upon giving written notice to the Chairman of the Board, the President, the Secretary, or the Board, unless the notice specifies a later time for the effectiveness of such resignation. If the resignation is effective at a future time, a successor may be elected to take office when the resignation becomes effective. Vacancies in the Board, except those existing as a result of a removal of a director, may be filled by a majority of the remaining directors, though less than a quorum, or by a sole remaining director, and each director so elected shall hold office until the next annual meeting and until such director's successor has been elected and qualified. A vacancy or vacancies in the Board shall be deemed to exist in case of the death, resignation, or removal of any director, or if the authorized number of directors be increased, or if the shareholders fail, at any annual or special meeting of shareholders at which any director or directors are elected, to elect the full authorized number of directors to be voted for at that meeting. The Board may declare vacant the office of a director who has been declared of unsound mind by an order of court or convicted of a felony. The shareholders may elect a director or directors at any time to fill any vacancy or vacancies not filled by the directors. Any such election by written consent, other than to fill a vacancy created by removal, requires the consent of a majority of the outstanding shares entitled to vote. Any such election by written consent to fill a vacancy created by removal requires unanimous consent. Section 5. Place of Meeting. Regular or special meetings of the Board shall be held at any place within or without the State of California which has been designated from time to time by the Board. in the absence of such designation, regular meetings shall be held at the principal executive office of the corporation. Section 6. Regular Meetings. Immediately following each annual meeting of shareholders the Board shall hold a regular meeting for the purpose of organization, election of officers, and the transaction of other business. Other regular meetings of the Board shall be held at such times and places as may be designated in the notice of the meeting or which are designated by resolution of the Board. Section 7. Special Meetings. Special meetings of the Board for any purpose or purposes may be called at any time by the Chairman of the Board, the President, any Vice President, the Secretary, or by any two directors. 2 Exhibit T3B-26 Special meetings of the Board shall be held upon four days' written notice or 48 hours' notice given personally or by telephone, telegraph, telex, or other similar means of communication. Any such notice shall be addressed or delivered to each director at such director's address as it is shown upon the records of the corporation or as may have been given to the corporation by the director for purposes of notice or, if such address is not shown on such records of notice or, if such address is not shown on such records or is not readily ascertainable, at the place in which the meetings of the directors are regularly held. Notice by mail shall be deemed to have been given at the time a written notice is deposited in the United States mails, postage prepaid. Any other written notice shall be deemed to have been given at the time it is personally delivered to the recipient or is delivered to a common carrier for transmission, or actually transmitted by the person giving the notice by electronic means, to the recipient. Oral notice shall be deemed to have been given at the time it is communicated, in person or by telephone or wireless, to the recipient or to a person at the office of the recipient who the person giving the notice has reason to believe will promptly communicate it to the recipient. Section 8. Quorum. A majority of the authorized number of directors constitutes a quorum of the Board for the transaction of business, except to adjourn as provided in Section 11 of this Article. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board, unless a greater number be required by law or by the Articles. A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for such meeting. Section 9. Participation in Meetings by Conference Telephone. Members of the Board may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. Section 10. Waiver of Notice. Notice of a meeting need not be given to any director who signs a waiver of notice or a consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such director. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Section 11. Adjournment. A majority of the directors present, whether or not a quorum is present, may adjourn any directors' meeting to another time and place. Notice of the time and place of holding an adjourned meeting need not be given to absent directors if the time and place be fixed at the meeting adjourned, except as provided in the next sentence. If the meeting is adjourned for more than 24 hours, notice of any adjournment to another time or place shall be given prior to the time of the adjourned meeting to the directors who were not present at the time of the adjournment. 3 Exhibit T3B-26 Section 12. Fees and Compensation. Directors and members of committees may receive such compensation, if any, for their services, and such reimbursement for expenses, as may be fixed or determined by the Board. Section 13. Action Without Meeting. Any action required or permitted to be taken by the Board may be taken without a meeting if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such directors. ARTICLE IV. OFFICERS Section 1. Officers. The officers of the corporation shall be a President, a Vice President-General Manager, a Secretary, and a Treasurer. The corporation may also have, at the discretion of the Board, such other officers as the corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as the Board may from time to time determine. Section 2. Removal and Resignation. Any officer may be removed, either with or without cause, by the Board at any time or, except in the case of an officer chosen by the Board, by any officer upon whom such power of removal may be conferred by the Board. Any such removal shall be without prejudice to the rights, if any, of the officer under any contract of employment of the officer. Any officer may resign at any time by giving written notice to the corporation, but without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification, or any other cause shall be filled in the manner prescribed in these Bylaws for regular election or appointment to such office. Section 4. President. The President shall be the chief executive officer and chief financial officer of the corporation. The President shall preside at all meetings of the shareholders and at all meetings of the Board. Section 5. Vice President and General Manager. The Vice President-General Manager has the general powers and duties of management usually vested in the general manager of a corporation and has such other powers and duties as may be prescribed by the Board. The senior ranking Vice President shall be the general manager and has, subject to the control of the Board, general supervision, direction, and control of the business and officers of the corporation. Section 6. Secretary. The Secretary shall keep or cause to be kept, at the principal executive office or such other place as the Board may order, a book of minutes of all meetings of the shareholders, the Board, and its committees, and a share register or a duplicate share register. 4 Exhibit T3B-26 The Secretary shall give, or cause to be given, notice of all the meetings of the shareholders and of the Board and any committees thereof required by the Bylaws or by law to be given, shall keep the seal of the corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board. Section 7. Treasurer. . Under the direction of the Chief Financial Officer, the Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of the corporation, and shall send or cause to be sent to the shareholders of the corporation such financial statement and reports as are by law or these Bylaws required to be sent to them. The books of account shall at all times be open to inspection by any director. The Treasurer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositaries as may be designated by the Board. The Treasurer shall disburse the funds of the corporation as may be ordered by the Board, shall render to the President and the directors, whenever they request it, an account of all transactions as Treasurer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board. ARTICLE V. OTHER PROVISIONS Section 1. Annual Report to Shareholders. The annual report to shareholders referred to in Section 1501 of the California General Corporation law is expressly waived, but nothing herein shall be interpreted as prohibiting the Board from issuing annual or other periodic reports to shareholders. Section 2. Construction and Definitions. Unless the context otherwise requires, the General Provisions, Rules of Construction, and Definitions contained in the General Provisions of the California Corporations Code and in the California General Corporation Law shall govern the construction of these Bylaws. Section 3. Loans to or guaranties for the benefit of officers or directors; loans upon the security of shares of the corporation. (a) Except as expressly provided in subsection (b) hereof, the corporation shall not make any loan of money or property to or guarantee the obligation of: (1) any director or officer of the corporation or of its parent or any subsidiary, or (2) any person upon the security of shares of the corporation or of its parent, unless the loan or guaranty is otherwise adequately secured, except by the vote of the holders of a majority of the shares of all classes, regardless of limitations or 5 Exhibit T3B-26 restrictions on voting rights, other than shares held by the benefited director, officer or shareholder. (b) The corporation may lend money to, or guarantee any obligation of or otherwise assist any officer or other employee of the corporation or of any subsidiary, including any officer or employee who is also a director, pursuant to an employee benefit plan (including, without limitation, any stock purchase or stock option plan) available to executives or other employees, whenever the Board determines that such loan or guaranty may reasonably be expected to benefit the corporation. If such plan includes officers or directors, it shall be approved by the shareholders after disclosure of the right under such plan to include officers or directors thereunder. Such loan or guaranty or other assistance may be with or without interest and may be unsecured or secured in such manner as the Board shall approve, including, without limitation, a pledge of shares of the corporation. The corporation may advance money to a director or officer of the corporation or of its parent or any subsidiary for expenses reasonably anticipated to be incurred in the performance of the duties of such director or officer, provided that in the absence of such advance such director or officer would be entitled to be reimbursed for such expenses by such corporation, its parent or any subsidiary. Section 4. Execution of Contracts. Contracts or other instruments in writing made in the name of the corporation which are authorized or ratified by the Board, or are done within the scope of authority, actual or apparent, conferred by the Board or within the agency power of the officer executing it, bind the corporation. ARTICLE VI. AMENDMENTS New Bylaws may be adopted or these Bylaws may be amended or repealed either by the affirmative vote or written consent of shareholders entitled to exercise a majority of the voting power of the corporation or by the approval of the Board. 6 Exhibit T3B-26 Directors' Resolution Adopting Bylaws WHEREAS, there has been presented to the directors a form of Bylaws for the regulation of the affairs of this corporation; and WHEREAS, it is deemed to be in the best interests of this corporation that said Bylaws be adopted by this Board of Directors as the Bylaws of this corporation; NOW, THEREFORE, BE IT RESOLVED, that Bylaws in the form presented to this meeting are adopted and approved as the Bylaws of this corporation until amended or repealed in accordance with applicable law. RESOLVED FURTHER, that the Secretary of this corporation is authorized and directed to execute a certificate of the adoption of said Bylaws and to enter said Bylaws as so certified in the Minute Book of this corporation, and to see that a copy of said Bylaws is kept at the principal executive or business office in California in accordance with Section 213 of the California General Corporation Law. 7 Exhibit T3B-26 Secretary's Certificate of Adoption of Bylaws I hereby certify that I am the duly elected and acting Secretary of Imperial Power Services, Inc., a California corporation, and that the foregoing Bylaws, comprising 7 pages, constitute the Bylaws of said corporation as duly adopted at a meeting of the Board of Directors thereof held on 28 January, 1982. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed seal of said corporation on 28 January, 1982. /s/ William R. Eldrdge ------------------------------------ William R. Eldredge Secretary 8 EX-99.T3B27 105 exhibit_t3b-27.txt Exhibit T3B-27 OGDEN MARTIN SYSTEMS OF KENT, INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in Detroit, Michigan. Section 2. The corporation may also have offices at such other places both within and without the State of Michigan as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such tine as may be determined by the board of directors, if not a legal holiday, and if a legal holiday, then on the next secular day following, at which they shall elect by a plurality vote a board of directors, and 1 transact such other business as may properly be brought before the meeting. Section 3. Written notice of the time, place and purposes of a meeting of shareholders shall be given not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, to each shareholder of record entitled to vote at the meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Michigan as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of shareholders may be called at any time, for any purpose or purposes, by the board of directors or by such other persons as may be authorized by law. Section 3. Written notice of the time, place and purposes of a special meeting of shareholders shall be given not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, to each shareholder of record entitled to vote at the meeting. 2 Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. The shareholders present in person or by proxy at such meeting may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. Whether or not a quorum is present, the meeting may be adjourned by a vote of the shares present. When the holders of a class or series of shares, are entitled to vote separately on an item of business, this section applies in determining the presence of a quorum of such class or series for transaction of the item of business. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the articles of incorporation. 3 Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Section 4. Any action required or permitted to be taken at an annual or special meeting of shareholders may be taken without a meeting, without prior notice and without a vote, if all the shareholders entitled to vote thereon consent thereto in writing. ARTICLE V DIRECTORS Section 1. The number of directors shall not be less than three nor more than five. Directors need not be residents of the State of Michigan nor shareholders of the corporation. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the shareholders at the annual meeting. The directors shall be elected at the annual meeting of the shareholders, except as provided in Section 2 of this Article, and shall hold office for the terms for which they are elected and until their successors are elected and qualified. 4 Section 2. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors. A directorship to be filled because of an increase in the number of directors or to fill a vacancy may be filled by the board for a term of office continuing only until the next election of directors by the shareholders. Section 3. The business affairs of the corporation shall be managed by its board except as otherwise provided by statute or in the articles of incorporation or by these by-laws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, outside of the State of Michigan, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors in office, and irrespective of any personal interest of any of them, may establish reasonable compensation of directors for services to the corporation as directors or officers. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Regular or special meetings of the board of directors may be held either within or without the State of Michigan. 5 Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Attendance of a director at a meeting constitutes a waiver of notice of the meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, a regular or special meeting 6 need be specified in the notice or waiver of notice of the meeting. Section 6. A majority of the members of the board then in office constitutes a quorum for transaction of business, unless the articles of incorporation provide for a larger or smaller number. The vote of the majority of members present at a meeting at which a quorum is present constitutes the action of the board unless the vote of a larger number is required by statute, the articles or these by-laws. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Unless otherwise provided by the articles of incorporation action required or permitted to be taken pursuant to authorization voted at a meeting of the board, may be taken without a meeting if, before or after the action, all members of the board consent thereto in writing. The written consents shall be filed with the minutes of the proceedings of the board. The consent has the same effect as a vote of the board for all purposes. 7 ARTICLE VII COMMITTEES Section 1. Unless otherwise provided in the articles of incorporation, the board may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of a committee, who may replace an absent or disqualified member at a meeting of the committee. In the absence or disqualification of a member of a committee, the members thereof present at a meeting and not disqualified from voting, whether or not they constitute a quorum, may unanimously appoint another member of the board to act at the meeting in place of such an absent or disqualified member. A committee, and each member thereof, shall serve at the pleasure of the board. A committee, to the extent provided in the resolution of the board or in the by-laws, may exercise all powers and authority of the board in management of the business and affairs of the corporation subject to any limitations by statute or in the articles of incorporation. ARTICLE VIII NOTICES Section 1. When a notice or communication is required or permitted by this act to be given by mail, it shall be mailed, except as otherwise provided in this act, to the person to whom 8 it is directed at the address designated by him for that purpose or, if none is designated, at his last known address. The notice or communication is given when deposited, with postage thereon prepaid, in a post office or official depository under the exclusive care and custody of the United States postal service. The mailing shall be registered, certified or other first class mail except where otherwise provided by statute. Section 2. When, under statutory requirements or the articles of incorporation or these by-laws or by the terms of an agreement or instrument, a corporation or the board or any committee thereof may take action after notice to any person or after lapse of a prescribed period of time, the action may be taken without notice and without lapse of the period of time, if at any time before or after the action is completed the person entitled to notice or to participate in the action to be taken or, in case of a shareholder, by his attorney-in-fact, submits a signed waiver of such requirements. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be appointed by the board of directors and shall be a chairman of the board, a president, one or more vice-presidents, secretary, treasurer and such other officers as may be determined by the board. 9 Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, secretary, and treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers, assistant officers, employees and agents as it deems necessary and prescribe their powers and duties. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. An officer elected or appointed shall hold office for the term for which he is elected or appointed and until his successor is elected or appointed and qualified, or until his resignation or removal. An officer elected or appointed by the board may be removed by the board with or without cause. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. 10 Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose 11 supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. 12 Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 13 ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the chairman of the board, vice-chairman of the board, president or a vice-president and by the treasurer, assistant treasurer, secretary or assistant secretary of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. A certificate representing shares shall state upon its face that the corporation is formed under the laws of this state, the name of the person to whom issued, the number and class of shares, and the designation of the series, if any, which the certificate represents, the par value of each share represented by the certificate, or a statement that the shares are without par value and shall set forth on its face or back or state that the corporation will furnish to a shareholder upon request and without charge a full statement of the designation, relative rights, preferences and limitations of the shares of each class authorized to be issued, and if the corporation is authorized to issue any class of shares in series, the designation, relative rights, preferences and limitations of each series so far as the same have been prescribed and the authority of the board to designate and prescribe the relative rights, preferences and limitations of other series. 14 Section 2. The signatures of the officers may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the corporation itself or its employee. In case any officer who has signed or whose facsimile signature has been placed upon a certificate ceases to be such officer before the certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed, and the board may require the owner of the lost or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged lost or destroyed certificate or the issuance of such a new certificate. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old 15 certificate cancelled and the transaction recorded upon the books of the corporation. FIXING OF RECORD DATE Section 5. For the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders or an adjournment thereof, or to express consent or to dissent from a proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of a dividend or allotment of a right, or for the purpose of any other action, the board of directors may fix, in advance, a date as the record date for any such determination of shareholders. The date shall not be more than sixty nor less than ten days before the date of the meeting, not more than sixty days before any other action. If a record date is not fixed, the record date for determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be the close of business on the day next preceding the day on which notice is given, or, if no notice is given, the day next preceding the day on which the meeting is held, and the record date for determining shareholders for any purpose shall be the close of business on the day on which the resolution of the board relating thereto is adopted. When a determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders has been made, the 16 determination applies to any adjournment of the meeting, unless the board fixes a new record date for the adjourned meeting. REGISTERED SHAREHOLDERS Section 6. For the purpose of determining shareholders entitled to vote or receive payment of a dividend or allotment of a right, the corporation shall be authorized to accept the list of shareholders made and certified by the officer or agent having charge of the stock transfer books as prima facie evidence as to who are such shareholders on the designated record date. LIST OF SHAREHOLDERS Section 7. The officer or agent having charge of the stock transfer books for shares of a corporation shall make and certify a complete list of the shareholders entitled to vote at a shareholders' meeting or any adjournment thereof. The list shall be arranged alphabetically within each class and series, with the address of, and the number of shares held by each shareholder, produced at the time and place of the meeting, subject to inspection by any shareholder during the whole time of the meeting and be prima facie evidence as to who are the shareholders entitled to examine the list or to vote at the meeting. A person who is a shareholder of record of a corporation, upon at least ten days' written demand may examine for any proper purpose in person or by agent or attorney, during usual business hours, its minutes of 17 shareholders' meetings and record of shareholders and make extracts therefrom, at the places where they are kept. ARTICLE XI DIVIDENDS Section 1. The board of directors may declare and pay dividends or make other distributions in cash, bonds or property of the corporation, including the shares or bonds of other corporations, on its outstanding shares, except when currently the corporation is insolvent or would thereby be made insolvent, or when the declaration, payment or distribution would be contrary to any statutory restriction or restriction contained in the articles of incorporation. Section 2. Before payment of any dividend, the board of directors may create reserves from its earned surplus or capital surplus for any proper purpose and may increase, decrease or abolish such reserve. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. 18 FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Michigan". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS These by-laws may be amended or repealed or new by-laws may be adopted by the shareholders or board of directors except as may be provided in the articles of incorporation. The shareholders may prescribe in these by-laws that any by-law made by them shall not be altered or repealed by the board of directors. Amendment of the by-laws by the board requires a vote of not less than a majority of the members of the board then in office. ARTICLE XIII DIRECTORS' ANNUAL STATEMENT Section 1. At least once in each year the board of directors shall cause a financial report of the corporation for 19 the preceding fiscal year to be made and distributed to each shareholder thereof within four months after the end of the fiscal year. The report shall include the corporation's statement of income, its year-end balance sheet and, if prepared by the corporation, its statement of source and application of funds and such other information as may be required by statute. FINANCIAL STATEMENT TO SHAREHOLDERS Section 2. Upon written request of a shareholder, the corporation shall mail to the shareholder its balance sheet as at the end of the preceding fiscal year; its statement of income for such fiscal year; and, if prepared by the corporation, its statement of source and application of funds for such fiscal year. 20 Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: 21 "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott C. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents 22 and Co -- Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. _____________________________ _______________________________ R. RICHARD ABLON SCOTT G. MACKIN __________________________ BRUCE W. STONE 23 Exhibit T3B-27 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. 24 Exhibit T3B-27 EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborcugh, Inc. Ogden Martin Systems of Indianapolis, Inc. NRC/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 25 Exhibit T3B-27 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. 26 Exhibit T3B-27 EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. 27 EX-99.T3B28 106 exhibit_t3b-28.txt Exhibit T3B-28 OGDEN MARTIN SYSTEMS OF LANCASTER, INC. * * * * B Y - L A W S * * * * ARTICLE I OFFICES Section 1. The registered office shall be located in the City of Philadelphia, Commonwealth of Pennsylvania. Section 2. The corporation may also have offices at such other places both within and without the Commonwealth of Pennsylvania as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF SHAREHOLDERS Section 1. All meetings of the shareholders shall be held at such place within or without the Commonwealth, as may be from time to time fixed or determined by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as may be determined by the board of directors, if not a legal holiday, and if a legal holiday, then on the next secular day following, at which they 1 shall elect by a plurality vote, a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called at any time by the president, or a majority of the board of directors, or the holders of not less than one-fifth of all the shares issued and outstanding and entitled to vote at the particular meeting, upon written request delivered to the secretary of the corporation. Such request shall state the purpose or purposes of the proposed meeting. Upon receipt of any such request, it shall be the duty of the secretary to call a special meeting of the shareholders to be held at such time, not more than sixty days thereafter, as the secretary may fix. If the secretary shall neglect to issue such call, the person or persons making the request may issue the call. Section 4. Written notice of every meeting of the shareholders, specifying the place, date and hour and the general nature of the business of the meeting, shall be served upon or mailed, postage prepaid, at least five days prior to the meeting, unless a greater period of notice is required by statute, to each shareholder entitled to vote thereat. Section 5. The officer having charge of the transfer books for shares of the corporation shall prepare and make at least five days before each meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, with the address and the number of shares held by each which list shall be kept on file at the registered office of the corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. Section 6. Business transacted at all special meetings of shareholders shall be limited to the purposes stated in the notice. Section 7. The holders of a majority of the issued and outstanding shares entitled to vote, present in person or represented by proxy, shall be requisite and shall constitute a quorum at all meetings of the shareholders for the transaction of business, except as otherwise provided by statute or by the articles of incorporation or by these by-laws. If, however, any meeting of shareholders cannot be organized because a quorum has not attended, the shareholders entitled to vote thereat, present in person or by proxy, shall have power, except as otherwise provided by statute, to adjourn the meeting to such time and place as they may determine, but in the case of any meeting called for the election of directors such meeting may be adjourned only from day to day or for such loner periods not exceeding fifteen days each as the holders of a majority of the shares present in person or by proxy shall direct, and those who attend the second of such adjourned meetings, although less than a quorum, shall nevertheless constitute a quorum for the purpose of electing directors. At any adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 8. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the shares having voting powers, present in person or represented by proxy, shall decide any question brought before such meeting, unless the question is one upon which, by express provision of the statutes or of the articles of incorporation or of these by-laws, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 9. Each shareholder shall at every meeting of the shareholders be entitled to one vote in person or by proxy for each share having voting power held by such shareholder, but no proxy shall be voted on after three years from its date, unless coupled with an interest, and, except where the transfer books of the corporation have been closed or a date has been fixed as a record date for the determination of its shareholders entitled to vote, transferees of shares which are transferred on the books of the corporation within ten days next preceding the date of such meeting shall not be entitled to vote at such meeting. Section 10. In advance of any meeting of shareholders, the board of directors may appoint judges of election, who need not be shareholders, to act at such meeting or any adjournment thereof. If judges of election be not so appointed, the chairman of any such meeting may and, on the request of any shareholder or his proxy, shall make such appointment at the meeting. The number of judges shall be one or three. If appointed at a meeting on the request of one or more shareholders or proxies, the majority of shares present and entitled to vote shall determine whether one or three judges are to be appointed. No person who is a candidate for office shall act as a judge. The judges of election shall do all such acts as may be proper to conduct the election or vote with fairness to all shareholders, and shall make a written report of any matter determined by them and execute a certificate of any fact found by them, if requested by the chairman of the meeting or any shareholder or his proxy. If there be three judges of election the decision, act or certificate of a majority, shall be effected in all respects as the decision, act or certificate of all. Section 11. Any action which may be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders who would be entitled to vote at a meeting for such purpose and shall be filed with the secretary of the corporation. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall not be less than three nor more than five. The directors shall be elected at the annual meeting of the shareholders, except as provided in Section 2 of this article, and each director shall hold office until his successor is elected and qualified. Directors need not be shareholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors shall be filled by a majority of the remaining number of the board, though less than a quorum and each person so elected shall be a director until his successor is elected by the shareholders, who may make such election at the next annual meeting of the shareholders or at any special meeting duly called for that purpose and held prior thereto. Section 3. The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised and done by the shareholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the Commonwealth of Pennsylvania. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the shareholders at the meeting at which such directors were elected and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a majority of the whole board shall be present. In the event of the failure of the shareholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the shareholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for such meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by resolution of at least a majority of the board at a duly convened meeting, or by unanimous written consent. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 8. At all meetings of the board a majority of the directors in office shall be necessary to constitute a quorum for the transaction of business, and the acts of a majority of the directors present at a meeting at which a quorum is present shall be the acts of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. If all the directors shall severally or collectively consent in writing to any action to be taken by the corporation, such action shall be as valid a corporate action as though it had been authorized at a meeting of the board of directors. COMMITTEES Section 10. The board of directors may, by resolution adopted by a majority of the whole board, designate one or more committees, each committee to consist of two or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee to the extent provided in such resolution or in these by-laws, shall have and exercise the authority of the board of directors in the management of the business and affairs of the corporation. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The committees shall keep regular minutes of the proceedings and report the same to the board when required. COMPENSATION OF DIRECTORS Section 11. Directors, as such shall not receive any stated salary for their services but, by resolution of the board, a fixed sum, and expenses of attendance if any, may be allowed for attendance at each regular or special meeting of the board or at meetings of the executive committee; provided that nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor. ARTICLE IV NOTICES Section 1. Notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the articles of incorporation or of these by-laws, a waiver thereof in writing signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The president and secretary shall be natural persons of full age; the treasurer may be a corporation but, if a natural person, shall be of full age. The board of directors may also choose additional vice-presidents and one or more assistant secretaries and assistant treasurers. Any number of the aforesaid offices may be held by the same person. Section 2. The board of directors, immediately after each annual meeting of shareholders, shall elect a president, who may, but need not be a director, and the board shall also annually choose a vice-president, a secretary and a treasurer who need not be members of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president, and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the executive committee when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of an assistant secretary. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES OF SHARES Section 1. The certificates of shares of the corporation shall be numbered and registered in a share register as they are issued. They shall exhibit the name of the registered holder and the number and class of shares and the series, if any, represented thereby and the par value of each share or a statement that such shares are without par value as the case may be. If more than one class of shares is authorized, the certificate shall state that the corporation will furnish to any shareholder, upon request and without charge a full or summary statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued, and the variations thereof between the shares of each series, and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. Every share certificate shall be signed by the president or vice--president and the secretary or an assistant secretary or the treasurer or an assistant treasurer and shall be sealed with the corporate seal which may be facsimile, engraved or printed. Section 3. Where a certificate is signed by a transfer agent or an assistant transfer agent or a registrar, the signature of any such president, vice-president, treasurer, assistant treasurer, secretary or assistant secretary may be facsimile. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation. LOST CERTIFICATES Section 4. The board of directors shall direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, destroyed or wrongfully taken, upon the making of an affidavit of that fact by the person claiming the share certificate to be lost, destroyed or wrongfully taken. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, destroyed or wrongfully taken, certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate or certificates alleged to have been lost, destroyed or wrongfully taken. TRANSFERS OF SHARES Section 5. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. CLOSING OF TRANSFER ROOKS Section 6. The board of directors may fix a time, not more than fifty days, prior to the date of any meeting of share-holders or the date fixed for the payment of any dividend or distribution or the date for the allotment of rights or the date when any change or conversion or exchange of shares will be made or go into effect, as a record date for the determination of the shareholders entitled to notice of and to vote at any such meeting or entitled to receive payment of any such dividend or distribution or to receive any such allotment of rights or to exercise the rights in respect to any such change, conversion or exchange of shares. In such case only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting or to receive payment of such dividend or to receive such allotment of rights or to exercise such rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after any record date so fixed. The board of directors may close the books of the corporation against transfers of shares during the whole or any part of such period and in such case written or printed notice thereof shall be mailed at least ten days before the closing thereof to each shareholder of record at the address appearing on the records of the corporation or supplied by him to the corporation for the purpose of notice. REGISTERED SHAREHOLDERS Section 7. The corporation shall be entitled to treat the holder of record of any share or shares as the holder in fact thereof and shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person, and shall not be liable for any registration or transfer of shares which are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary unless made with actual knowledge that a fiduciary or nominee of a fiduciary is committing a breach of trust in requesting such registration or transfer, or with knowledge of such facts that its participation therein amounts to bad faith. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the shares of the corporation, subject to the provisions of the articles of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in its shares, subject to the provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. FINANCIAL REPORT TO SHAREHOLDERS Section 3. The directors shall not be required to send, or cause to be sent, to the shareholders, a financial report as of the closing date of the preceding fiscal year. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Pennsylvania". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII AMENDMENTS Section 1. These by--laws may be altered, amended or repealed by a majority vote of the shareholders entitled to vote thereon at any regular or special meeting duly convened after notice to the shareholders of that purpose or by a majority vote of the members of the board of directors at any regular or special meeting duly convened after notice to the directors of that purpose, subject always to the power of the shareholders to change such action by the directors. Exhibit T3B-28 Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide f or a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: -1- "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby ire amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents -2- and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. _______________________ __________________ R. RICHARD ABLON SCOTT G MACKIN _____________________ BRUCE W. STONE -3- Exhibit T3B-28 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc . LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. 1 Exhibit T3B-28 EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 1 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. EX-99.T3B29 107 exhibit_t3b-29.txt Exhibit T3B-29 OGDEN MARTIN SYSTEMS OF LEE, INC. ***** BY -- LAWS ***** ARTICLE I OFFICES Section 1. The registered office shall be located in Plantation, Florida. Section 2. The corporation may also have offices at such other places both within and without the State of Florida as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held at such place as may be determined from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as may be determined by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. 1 Section 3. Written or printed notice of the annual meeting stating the place, day and hour of the meeting shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. The notice shall also set forth the purpose or purposes for which the meeting is called. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Florida as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of shareholders may be called at any time, for any purpose or purposes, by the board of directors or by such other persons as may be authorized by law. Section 3. Written or printed notice of a special meeting stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. ARTICLE IV 2 QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the articles of incorporation. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. ARTICLE V DIRECTORS Section 1. The number of directors shall be three (see 5/25/90 Shareholder Amendment). Directors need not be residents 3 of the State of Florida nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Vacancies and newly created directorships resulting from any increase in the number of directors may be filled by a majority of the directors then in office, though less than a quorum, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these bylaws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of Florida, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. 4 ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of Florida. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special 5 meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the articles of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the articles of incorporation. Members of the board of directors shall be deemed present at a meeting of such board if a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, is used. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the bylaws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of 6 directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. Section 2. In the absence or disqualification from voting of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of such absent or disqualified member. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of incorporation or of these by -- laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the articles of incorporation or these bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX 7 OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall 8 see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice -- president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant 9 secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. 10 Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the president or a vice -- president and the secretary or an assistant secretary of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full or summary statement of the designations, preferences, limitations, and relative rights 11 of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFER OF SHARES 12 Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. FIXING OF RECORD DATE Section 5. The board of directors may fix a date not more than sixty days prior to the date set for any meeting of the shareholders as the record date as of which the shareholders of record who have the right to and are entitled to notice of and to vote at such meeting and any adjournment thereof shall be determined. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Florida. ARTICLE XI GENERAL PROVISIONS DIVIDENDS 13 Section 1. Subject to the provisions of the articles of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to any provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Florida". The seal 14 may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These bylaws may be altered, amended or repealed or new bylaws may be adopted by the affirmative vote of a majority of the board of directors, or by the shareholders, at any regular or special meeting. 15 By -- Laws Amendement Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states Incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of 16 the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the 17 corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. _________________ _______________ R. RICHARD ABLOH SCOTT G. MACKIN ____________________________ BRUCE W. STONE 18 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhij.l Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. 19 EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 20 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. 21 EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. 22 By -- Laws Amendement Action by Unanimous Consent in Writing of of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990 The undersigned, constituting the holder of all the outstanding shares of the corporations listed on Exhibits A, B, and C attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of the corporation listed on Exhibit A hereto be amended to change the number of directors of such corporation to "not less than three nor more than five"; and it is further RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit B hereto be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of each of the corporations listed on Exhibit C hereto to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott C. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS, INC. 23 By:_____________________________ Scott G. Mackin First Executive Vice President 24 EXHIBIT A Ogden Martin Systems of Indianapolis, Inc. 25 EXHIBIT B Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntsville, Inc. NRC/Recovery Group, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 26 EXHIBIT C Ogden Marion Land Corp. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax,. Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Indianapolis, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OHS Equity of Stanislaus, Inc. 27 Ogden Martin Systems of Tulsa, inc. Ogden Martin Systems of Union, Inc. 28 EX-99.T3B30 108 exhibit_t3b-30.txt Exhibit T3B-30 OGDEN MARTIN SYSTEMS OF HUNTINGTON RESOURCE RECOVERY EIGHT CORP. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at 1 Exhibit T3B-30 which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less 2 Exhibit T3B-30 than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by 3 Exhibit T3B-30 proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than two nor more than ten. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold 4 Exhibit T3B-30 office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute, If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter 5 Exhibit T3B-30 provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on five days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. 6 Exhibit T3B-30 Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the 7 Exhibit T3B-30 corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from tine to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. 8 Exhibit T3B-30 ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein; shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. 9 Exhibit T3B-30 Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman, of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating Officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. 10 Exhibit T3B-30 Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 10. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, In the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. Re shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary perform the duties and exercise the powers of the secretary and shall perform such 11 Exhibit T3B-30 other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors shall, in the absence or disability of the treasurer perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 12 Exhibit T3B-30 ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of 13 Exhibit T3B-30 directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a 14 Exhibit T3B-30 meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors nay fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there nay be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 15 Exhibit T3B-30 ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders and/or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of 16 Exhibit T3B-30 the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 17 EX-99.T3B31 109 exhibit_t3b-31.txt Exhibit T3B-31 OGDEN MARION LAND CORP. B Y - L A W S ARTICLE I OFFICES Section 1. The registered office shall be located in Portland, Oregon. Section 2. The corporation may also have offices at such other places both within and without the state of Oregon as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on the first business day of the second week in May each year, at which the shareholders shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the time, place, and purpose or purposes of the meeting shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the state of Oregon as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president, the board of directors, or the holders of not less than fifty percent of all the shares entitled to vote at the meeting. Section 3. Written notice of a special meeting stating the time, place, and purpose or purposes of the meeting for which the meeting is called, shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. Section 4. Business transacted at any special meeting shall be confined to the purpose or purposes stated in the notice thereof. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. The holders of a majority of the shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the articles of incorporation. Section 3. Each outstanding share of stock having voting power shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders, unless otherwise 2 provided in the articles of incorporation. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his agent. In all elections for directors every shareholder entitled to vote shall have the right to vote, in person or by proxy, the number of shares of stock owned by him, for as many persons as there are directors to be elected and for whose election he has a right to vote, or, if the articles of incorporation so provide, to cumulate the vote of said shares, and give one candidate as many votes as the number of directors multiplied by the aggregate number of his votes shall equal, or to distribute the votes on the same principle among as many candidates as he may see fit. Section 4. Subject to statutory provisions, any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE V DIRECTORS Section 1. The number of directors which shall constitute the whole board of directors, other than the first board of directors, shall be not less than three nor more than six. The exact number of directors within such maximum and minimum shall be determined by resolution of the board of directors or by the shareholders at an annual meeting or special meeting. Directors need not be residents of the state of Oregon nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Unless otherwise provided in the articles of incorporation, any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors. A director elected to fill a vacancy shall be elected for the unexpired portion of the term of his predecessor in office. 3 Any directorship to be filled by reason of an increase in the number of directors shall be filled by election at an annual meeting or at a special meeting of shareholders called for that purpose. A director elected to fill a newly created directorship shall serve until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualified. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books and records of the corporation, except such as are required by law to be kept within the state, outside of the state of Oregon, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the state of Oregon. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. 4 Section 4. Special meetings of the board of directors may be called by the president on three days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Notice need not be given to any director who signs a waiver of notice, whether before or after the meeting. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater or lesser number is required by statute or by the articles of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater or lesser number is required by statute or by the articles of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Unless otherwise provided by the articles of incorporation, any action required to be taken at a meeting of the board, or any committee thereof, shall be deemed the action of the board of directors or of a committee thereof, if all directors or committee members, as the case may be, execute either before or after the action is taken, a written consent thereto, and the consent is filed with the records of the corporation. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the by-laws or otherwise, may designate one or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the 5 committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of incorporation or of these by-laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the articles of incorporation or these by-laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. 6 Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages, and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform 7 such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation, and he or an assistant secretary shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in his possession or under his control belonging to the corporation. 8 Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the president or a vice-president and by the secretary or an assistant secretary of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and preferences between the shares of each series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers of the corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its 9 discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate canceled and the transaction recorded upon the books of the corporation. CLOSING OF TRANSFER BOOKS Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof or entitled to receive payment of any dividend or allotment of any right, or entitled to give a written consent to any action without a meeting, or in order to make a determination of shareholders for any other proper purpose, the board of directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, fifty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to give a written consent to any action without a meeting, such books may not be closed for more than fifty days before the date fixed for tabulation of consents or if no date has been fixed for tabulation, the books may not be closed for more than fifty days before the last day on which consents received may be counted. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than fifty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken and, in case of determining shareholders entitled to give a written consent the record date may not be more than fifty days before the date fixed for tabulation of the 10 consents, or if no date has been fixed for the tabulation, more than fifty days before the last day on which consents may be counted. If the stock transfer books are not closed and no record date is fixed, the record date for a shareholders' meeting shall be the close of business on the day next preceding the day on which notice is given; and the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the resolution of the board relating thereto is adopted. When a determination of shareholders of record for a shareholders' meeting has been made as provided in this section, such determination shall apply to any adjournment thereof unless the board fixes a new record date for the adjourned meeting. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Oregon. LIST OF SHAREHOLDERS Section 7. The officer or agent having charge of the transfer books for shares shall make, at least ten days before each meeting of shareholders, and certify a complete list of the shareholders entitled to vote at such meeting, or adjournment thereof, arranged in alphabetical order, with the address of, and the number of shares held by each shareholder, which list, for a period of ten days prior to such meeting, shall be kept on file at the registered office of the corporation and shall be subject to inspection by any shareholder at any time during regular business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of the shareholders. 11 ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the articles of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in the bonds or shares of the corporation or other property including the shares or bonds of other corporations subject to any provisions of law and of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Oregon." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. 12 ARTICLE XII AMENDMENTS Section 1. These by-laws may be altered, amended, or repealed or new by-laws may be adopted by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board, subject to any provision in the articles of incorporation reserving to the shareholders the power to adopt, amend, or repeal by-laws, but by-laws made by the board may be altered or repealed and new by-laws made by the shareholders. The shareholders may prescribe that any by-law made by them shall not be altered or repealed by the board. 13 BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on 1 Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott C. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia N. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. Richard Ablon /s/ Scott G. Mackin - --------------------- -------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ Bruce W. Stone --------------------- BRUCE W. STONE 2 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. 3 EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 4 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. 5 EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. 6 EX-99.T3B32 110 exhibit_t3b-32.txt Exhibit T3B-32 RESOURCE RECOVERY SYSTEMS OF CONNECTICUT, INC. * * * * * B Y - L A W S * * * * * ARTICLE I OFFICES Section 1. The principal office shall be located in Hartford, Connecticut. Section 2. The corporation may also have offices at such other places both within and without the State of Connecticut as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held in Fairfield, New Jersey, at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as shall be designated from time to time by the board of directors and stated the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice of the annual meeting stating the place, day and hour of the meeting shall be delivered not less than seven nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Connecticut as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of shareholders may be called at any time, for any purpose or purposes, by the board of directors or by such other persons as may be authorized by law. Section 3. Written or printed notice of a special meeting stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered not less than seven nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the certificate of incorporation. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either person or by proxy executed writing by the shareholder or by his duly authorized attorney-in-fact. Section 4. Any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE V DIRECTORS Section 1. The number of directors shall be three. Directors need not be residents of the State of Connecticut nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors. A director elected to fill a vacancy shall be elected for the unexpired portion of the term of his predecessor office. Any vacancy created by an increase the number of directorships shall be filled for the unexpired term by action of shareholders. Any other vacancy may be filled for the unexpired term by action of the sole remaining director office or by unanimous written consent of all the directors without a meeting or at a meeting of the board of directors by the concurring vote of a majority of the remaining directors in office, though such remaining directors are less than a quorum, though the number of directors at the meeting less than a quorum and though such majority is less than a quorum. A director elected to fill a newly created directorship shall serve until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualified. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of Connecticut, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of Connecticut. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the certificate of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the by-laws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice required to be given to any director or shareholder, shall not be construed to mean personal notice, but such notice may be given writing, by mail, addressed to such director or shareholder, at his address as appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the certificate of incorporation or these by-laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 10. The vice-president, or there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the president or a vice-president and the secretary or an assistant secretary or the treasurer or an assistant treasurer of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full or summary statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations the relative rights and preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers of the corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. CLOSING OF TRANSFER BOOKS Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, seventy days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days, immediately preceding such meeting. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than seventy days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If the stock transfer books are not closed and no record date is fixed, the determination of shareholders entitled to notice of or to vote at a meeting, or to receive payment of a dividend, the date on which notice of the meeting mailed or the date on which the resolution of the board of directors declaring such dividend adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Connecticut. LIST OF SHAREHOLDERS Section 7. The officer or agent having charge of the transfer books for shares shall make, at least five days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order, with the address of each and the number of shares held by each, which list, for a period five days prior to such meeting, shall be kept on file at the principal office of the corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original share ledger or transfer book, or a duplicate thereof, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book or to vote at any meeting of the shareholders. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the certificate of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid cash, in property or shares of the capital stock, subject to any provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Connecticut". The seal may be used by causing or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These by-laws may be altered, amended repealed or new by-lays may be adopted (a) at any regular or special meeting of shareholders at which a quorum is present or represented, by the affirmative vote of a majority of the stock entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting, or (b) by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board. EX-99.T3B33 111 exhibit_t3b-33.txt Exhibit T3B-33 -------------- OGDEN MARTIN SYSTEMS OF MONTGOMERY, INC. * * * * * BYLAWS * * * * * ARTICLE I OFFICES Section 1. The principal office shall be in the City of Baltimore, State of Maryland. Section 2. The corporation may also have offices at such other places both within and without the State of Maryland as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. Meetings of stockholders shall be held at the office of the corporation or at any other place within the United States as shall be designated from time to time by the board of directors and stated in the notice of meeting or in a duly executed waiver~ of notice thereof. Section 2. Annual meetings of stockholders shall be held at such date and time as shall be fixed by the Board of Directors and stated in the notice of the meeting, at which they shall elect a board of directors and may transact any business within the powers of the corporation. Any business of the corporation may be transacted at the annual meeting without being specially designated in the notice, except such business as is specifically required by statute to be stated in the notice. Section 3. At any time in the interval between annual meetings special meetings of the stockholders may be called by the board of directors, or by the president, a vice-president, the secretary, or an assistant secretary. Section 4. Special meetings of stockholders shall be called by the secretary upon the written request of the holders of shares entitled to not less than twenty-five per cent of all the votes entitled to be cast at such meeting. Such request shall state the purpose or purposes of such meeting and the matters proposed to be acted on thereat. The secretary shall inform such stockholders of the reasonably estimated cost of preparing and mailing such notice of the meeting, and upon payment to the corporation of such costs the secretary shall give notice stating the purpose or purposes of the meeting to all stockholders entitled to notice at such meeting. No special meeting need be called upon the request of the holders of shares entitled to cast less than a majority of all votes entitled to be cast at such meeting, to consider any matter which is substantially the same as a matter voted upon at any special meeting of the stockholders held during the preceding twelve months. Section 5. Not less than ten nor more than ninety days before the date of every stockholders' meeting, the secretary shall give to each stockholder entitled to vote at such meeting, and to each stockholder not entitled to vote who is entitled by statute to notice, written or printed notice stating the time and place of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, either by mail or by presenting it to him personally or by leaving it at his residence or usual place of business. If mailed, such notice shall be deemed to be given when deposited in the United States mail addressed to the stockholder at his post--office address as it appears on the records of the corporation, with postage thereon prepaid. Section 6. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 7. At any meeting of stockholders the presence in person or by proxy of stockholders entitled to cast a majority of the votes thereat shall constitute a quorum; but this section shall not affect any requirement under the statute or under the charter for the vote necessary for the adoption of any measure. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 8. A majority of the votes cast at a meeting of stockholders, duly called and at which a quorum is present, shall be sufficient to take or authorize action upon any matter which may properly come before the meeting, unless more than a majority of the votes cast is required by the statute or by the charter. Section 9. Unless the charter provides otherwise, each outstanding share of stock having voting power shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders; but no share shall be entitled to vote if any installment payable thereon is overdue and unpaid. A stockholder may vote the shares owned of record by him either in person or by proxy executed in writing by the stockholder or by his duly authorized attorney-in-fact. No proxy shall be valid after eleven months from its date, unless otherwise provided in the proxy. At all meetings of stockholders, unless the voting is conducted by inspectors, all questions relating to the qualification of voters and the validity of proxies and the acceptance or rejection of votes shall be decided by the chairman of the meeting. Section 10. Any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, if a consent in writing, setting forth such action, is signed by all the stockholders entitled to vote on the subject matter thereof and any other stockholders entitled to notice of a meeting of stockholders but not to vote thereat have waived in writing any rights which they may have to dissent from such action, and such consent and waiver are filed with the records of stockholders meetings. ARTICLE III DIRECTORS Section 1. The number of directors of the corporation shall be not less than three nor more than five. Until the first annual meeting of stockholders or until successors are duly elected and qualify, the board shall consist of the persons named as such in the charter. At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect directors to hold office until the next annual meeting or until their successors are elected and qualify. Directors need not be stockholders in the corporation. Section 2. Any vacancy occurring in the board of directors for any cause other than by reason of an increase in the number of directors may be filled by a majority of the remaining members of the board of directors, although such majority is less than a quorum. Any vacancy occurring by reason of an increase in the number of directors may be filled by action of a majority of the entire board of directors. If the stockholders of any class or series are entitled separately to elect one or more directors, a majority of the remaining directors elected by that class or series or the sole remaining director elected by that class or series may fill any vacancy among the number of directors elected by that class or series. A director elected by the board of directors to fill a vacancy shall be elected to hold office until the next annual meeting of stockholders or until his successor is elected and qualifies. Section 3. The business and affairs of the corporation shall be managed by its board of directors, which may exercise all of the powers of the corporation, except such as are by law or by the charter or by these bylaws conferred upon or reserved to the stockholders. Section 4. At any meeting of stockholders, duly called and at which a quorum is present, the stockholders may, by the affirmative vote of the holders of a majority of the votes entitled to be cast thereon, remove any director or directors from office and may elect a successor or successors to fill any resulting vacancies for the unexpired terms of removed directors. MEETINGS OF THE BOARD OF DIRECTORS Section 5. Meetings of the board of directors, regular or special, may be held at any place in or out of the State of Maryland as the board may from time to time determine. Section 6. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting, and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 7. Regular meetings of the board of directors may be held without notice at such time and place as shall from time to time be determined by the board of directors. Section 8. Special meetings of the board of directors may be called at any time by the board of directors or the executive committee, if one be constituted, by vote at a meeting, or by the president or by a majority of the directors or a majority of the members of the executive committee in writing with or without a meeting. Special meetings may be held at such place or places within or without Maryland as may be designated from time to time by the board of directors; in the absence of such designation such meetings shall be held at such places as may be designated in the call. Section 9. Notice of the place and time of every special meeting of the board of directors shall be served on each director or sent to him by telegraph or by mail, or by leaving the same at his residence or usual place of business at least ten days before the date of the meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail addressed to the director at his post-office address as it appears on the records of the corporation, with postage thereon prepaid. Section 10. At all meetings of the board a majority of the entire board of directors shall constitute a quorum for the transaction of business and the action of a majority of the directors present at any meeting at which a quorum is present shall be the action of the board of directors unless the concurrence of a greater proportion is required for such action by statute, the articles of incorporation or these bylaws. If a quorum shall not be present at any meeting of directors, the directors present thereat may by a majority vote adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 11. Any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if a written consent to such action is signed by all members of the board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the board or committee. COMMITTEES OF DIRECTORS Section 12. The board of directors may appoint from among its members an executive committee and other committees composed of two or more directors, and may delegate to such committees, any of the powers of the board of directors except the power to declare dividends or distributions on stock, recommend to the stockholders any action which requires stockholder approval, amend the bylaws, approve any merger or share exchange which does not require stockholder approval or issue stock. However, if the board of directors has given general authorization for the issuance of stock, a committee of the board, in accordance with a general formula or method specified by the board of directors by resolution or by adoption of a stock option plan, may fix the terms of stock subject to classification or reclassification and the terms on which any stock may be issued. In the absence of any member of any such committee, the members thereof present at any meeting, whether or not they constitute a quorum, may appoint a member of the board of directors to act in the place of such absent members. Section 13. The committees shall keep minutes of their proceedings and shall report the same to the board of directors at the meeting next succeeding, and any action by the committees shall be subject to revision and alteration by the board of directors, provided that no rights of third persons shall be affected by any such revision or alteration. COMPENSATION OF DIRECTORS Section 14. Directors, as such, shall not receive any stated salary for their services but, by resolution of the board, a fixed sum, and expenses of attendance if any, may be allowed to directors for attendance at each regular or special meeting of the board of directors, or of any committee thereof, but nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation there for. ARTICLE IV NOTICES Section 1. Notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. In the case of stockholders' meetings the notice may be left at the stockholders residence or usual place of business. Notice to directors may also be given by telegram. Section 2. Whenever any notice of the time, place or purpose of any meeting of stockholders, directors or committee is required to be given under the provisions of the statute or under the provisions of the charter or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice and filed with the records of the meeting, whether before or after the holding thereof, or actual attendance at the meeting of stockholders in person or by proxy, or at the meeting of directors or committee in person, shall be deemed equivalent to the giving of such notice to such persons. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The president shall be selected from among the directors. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Two or more offices, except those of president and secretary, may be held by the same person but no officer shall execute, acknowledge or verify any instrument in more than one capacity, if such instrument is required by law, the charter or these bylaws to be executed, acknowledged or verified by two or more officers. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president from among the directors, and shall choose one or more vice--presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall serve for one year and until their successors are chosen and qualify. Any officer or agent may be removed by the board of directors whenever, in its judgment, the best interests of the corporation will be served thereby, but such removal shall be without prejudice to the contractual rights, if any, of the person so removed. If the office of any officer becomes vacant for any reason, the vacancy shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation; he shall preside at all meetings of the stockholders and directors, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the board are carried into effect. Section 7. He shall execute in the corporate name all authorized deeds, mortgages, bonds, contracts or other instruments requiring a seal, under the seal of the corporation, except in cases in which the signing or execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. VICE-PRESIDENTS Section 8. The vice--president, or if there shall be more than one, the vice--presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president, and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of an assistant secretary. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES OF STOCK Section 1. Each stockholder shall be entitled to a certificate or certificates which shall represent and certify the number and kind and class of shares owned by him in the corporation. Each certificate shall be signed by the president or a vice--president and countersigned by the secretary or an assistant secretary or the treasurer or an assistant treasurer and may be sealed with the corporate seal. Section 2. The signatures may be either manual or facsimile signatures and the seal may be either facsimile or any other form of seal. In case any officer who has signed any certificate ceases to be an officer of the corporation before the certificate is issued, the certificate may nevertheless be issued by the corporation with the same effect as if the officer had not ceased to be such officer as of the date of its issue. Each stock certificate shall include on its face the name of the corporation, the name of the stockholder and the class of stock and number of shares represented by the certificate. If the corporation has authority to issue stock of more than one class, the stock certificate shall contain on its face or back a full statement or summary of the designations and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption of the stock of each class which the corporation is authorized to issue and if the corporation is authorized to issue any preferred or special class in series, the differences in the relative rights and preferences between the shares of each series to the extent they have been set, and the authority of the board of directors to set the relative rights and preferences of subsequent series. A summary of such information included in a registration statement permitted to become effective under the Federal Securities Act of 1933, as now or hereafter amended, shall be an acceptable summary for the purposes of this section. In lieu of such full statement or summary, there may be set forth upon the face or back of the certificate a statement that the corporation will furnish to any stockholder upon request and without charge, a full statement of such information. Every stock certificate representing shares of stock which are restricted as to transferability by the corporation shall contain a full statement of the restriction or state that the corporation will furnish information about the restriction to the stockholder on request and without charge. A stock certificate may not be issued until the stock represented by it is fully paid, except in the case of stock purchased under an option plan as provided by Section 2-207 of the Corporations and Associations Article of Annotated Code of Maryland. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been stolen, lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be stolen, lost or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such stolen, lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and to give the corporation a bond, with sufficient surety, to the corporation to indemnify it against any loss or claim which may arise by reason of the issuance of a new certificate. TRANSFERS OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. CLOSING OF TRANSFER BOOKS Section 5. The board of directors may fix, in advance, a date as the record date for the purpose of determining stockholders entitled to notice of, or to vote at, any meeting of stockholders, or stockholders entitled to receive payment of any dividend or the allotment of any rights, or in order to make a determination of stockholders for any other proper purpose. Such date, in any case, shall be not more than sixty days, and in case of a meeting of stockholders not less than ten days, prior to the date on which the particular action requiring such determination of stockholders is to be taken. In lieu of fixing a record date, the board of directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, twenty days. If the stock transfer books are closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders, such books shall be closed for at least ten days immediately preceding such meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Maryland. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the articles of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in its own shares, subject to the provisions of the statute and of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interests of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The president or a vice-president or the treasurer shall prepare or cause to be prepared annually a full and correct statement of the affairs of the corporation, including a balance sheet and a financial statement of operations for the preceding fiscal year, which shall be submitted at the annual meeting and shall be filed within twenty days thereafter at the principal office of the corporation in the State of Maryland. CHECKS Section 4. All checks, drafts, and orders for the payment of money, notes and other evidences of indebtedness, issued in the name of the corporation shall be signed by such officer or officers as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Maryland." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. STOCK LEDGER Section 7. The corporation shall maintain at its office in the City of New York, State of New York, an original stock ledger containing the names and addresses of all stockholders and the number of shares of each class held by each stockholder. Such stock ledger may be in written form or any other form capable of being converted into written form within a reasonable time for visual inspection. ARTICLE VIII AMENDMENTS Section 1. The board of directors shall have the power, at any regular meeting or at any special meeting if notice L thereof be included in the notice of such special meeting, to alter or repeal any bylaws of the corporation and to make new bylaws, except that the board of directors shall not alter or repeal any bylaws made by the stockholders. Section 2. The stockholders shall have the power, at any annual meeting or at any special meeting if notice thereof be included in the notice of such special meeting, to alter or repeal any bylaws of the corporation and to make new bylaws. Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by--laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vie Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia N. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. RICHARD ABLON /s/ SCOTT G. MACKIN - ------------------------------------------- ---------------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ R. RICHARD ABLON --------------------- R. RICHARD ABLON EXHIBIT A --------- Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems or Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. EXHIBIT B --------- Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Norris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C --------- Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. EXHIBIT C --------- Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. EX-99.T3B34 112 exhibit_t3b-34.txt Exhibit T3B-34 CATALYST NEW MARTINSVILLE HYDROELECTRIC CORPORATION BY-LAWS ARTICLE ONE STOCKHOLDERS SECTION 1.1. Annual Meetings. An annual meeting of stockholders to elect directors and transact such other business as may properly be presented to the meeting shall be held at such place as the Board of Directors may from time to time fix, at 10:00 A.M. on the 15th day of April in each year or, if that day shall be a legal holiday in the jurisdiction in which the meeting is to be held, then on the next day not a legal holiday. SECTION 1.2. Special Meetinqs. A special meeting of stockholders may be called at any time by the Board of Directors, the Chairman of the Board, the Executive Committee, if any, or the President and shall be called by any of them or by the Secretary upon receipt of a written request to do so specifying the matter or matters appropriate for action at such a meeting that are proposed to be presented at the meeting, signed by holders of record of a majority of the shares of stock that would be entitled to be voted on such matter or matters if the meeting were held on the day such request is received and the record date for such meeting were the close of business on the preceding day. Any such meeting shall be held at such time and at such place, within or without the State of Delaware, as shall be determined by the body or person calling such meeting and as shall be stated in the notice of such meeting. SECTION 1.3. Notice of Meeting. For each meeting of stockholders written notice shall be given stating the place, date and hour and, in the case of a special meeting, the purpose or purposes for which the meeting is called and, if the list of stockholders required by Section 1.9 is not to be at such place at least 10 days prior to the meeting, the place where such list will be. Except as otherwise provided by Delaware law, the written notice of any meeting shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the Corporation. SECTION 1.4. Quorum. Except as otherwise required by law or the Certificate of Incorporation, the holders of record of a majority of the shares of stock entitled to be voted, in person or represented by proxy at a meeting, shall constitute a quorum for the transaction of business at the meeting, but in the absence of a quorum the holders record present or represented by proxy at such meeting may vote to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is obtained. At any such adjourned session of the meeting at which there shall be present or represented the holders of record of the requisite number of shares, any business may be transacted that might have been transacted at the meeting as originally called. SECTION 1.5. Chairman and Secretary at Meeting. At each meeting of stockholders the President, or in his absence the person designated in writing by the President, or if no person is so designated, then a person designated by the Board of Directors, shall preside as chairman of the meeting; if no person is so designated, then the meeting shall choose a chairman by plurality vote. The Secretary, or in his absence a person designated by the chairman of the meeting, shall act as secretary of the meeting. SECTION 1.6. Voting; Proxies. Except as otherwise provided by law or the Certificate of Incorporation, and subject to the provisions of Section 1.10: (a) Each stockholder shall at every meeting of stockholders be entitled to one vote for each share of capital stock held by him. (b) Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. (c) Directors shall be elected by a plurality vote. (d) Each matter, other than election of directors, properly presented to any meeting, shall be decided by a majority of the votes cast on the matter. 2 (e) Election of directors and the vote on any other matter presented to a meeting shall be by written ballot only if so ordered the chairman of the meeting or if so requested by any stockholder present or represented by proxy at the meeting entitled to vote in such election or on such matter, as the case may be. SECTION 1.7. Adjourned Meetings. A meeting of stockholders may be adjourned to another time or place as provided in Sections 104 or 1.6(d).Unless the Board of Director fixes a new record date, stockholders of record for an adjourned meeting shall be as originally determined for the meeting from which the adjournment was taken. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. At the adjourned meeting any business may be transacted that might have been transacted at the meeting as originally called. SECTION 1.8. Consent of Stockholders in Lieu of Meeting. Any action that may be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Notice of the taking of such action shall be given promptly to each stockholder that would have been entitled to vote thereon at a meeting of stockholders and that did not consent thereto in writing. SECTION 1.9. List of Stockholders Entitled to Vote. At least 10 days before every meeting of stockholders a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder, shall be prepared and shall be open to the examination of any stockholder for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, not so specified, at the place where the meeting is to be held. Such list shall be produced and 3 kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. SECTION 1.10. Fixing of Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall be the day on which the first written consent is expressed; and the record date or any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. ARTICLE TWO DIRECTORS SECTION 2.1. Number; Term of Office; Qualifications; Vacancies. The number of directors that shall constitute the whole Board of Directors shall be not less than one or more than ten as may be determined by action of the Board of Directors taken by the unanimous vote of the Board. Directors shall be elected at the annual meeting of stockholders to hold office, subject to Sections 2.2 and 2.3, until the next annual meeting of stockholders and until their respective successors are elected and qualified. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or by the sole remaining director, and the directors so chosen shall hold office, subject to Sections 2.2 and 2.3, until the next annual meeting of 4 stockholders and until their respective successors are elected and qualified. SECTION 2.2. Resignation. Any director of the Corporation may resign at any time by giving written notice of such resignation to the Board of Directors, the President or the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. When one or more directors shall resign from the Board of Directors effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in these By-Laws in the filling of other vacancies. SECTION 2.3. Removal. Any one or more directors may be removed, with or without cause, by the vote or written consent of the holders of a majority of the shares entitled to vote at an election of directors. SECTION 2.4. Regular and Annual Meetings; Notice. Regular meetings of the Board of Directors shall be held at such time and at such place, within or without the State of Delaware, as the Board of Directors may from time to time prescribe. No notice need be given of any regular meeting, and a notice, if given, need not specify the purposes thereof. A meeting of the Board of Directors may be held without notice immediately after an annual meeting of stockholders at the same place as that at which such meeting was held. SECTION 2.5. Special Meetings; Notice. A special meeting of the Board of Directors may be called at any time by the Board of Directors, its Chairman, the Executive Committee, if any, the President or any person acting in the place of the President and be called by any one of them or by the Secretary upon receipt of a written request to do so specifying the matter or matters, appropriate for action at such a meeting, proposed to be presented at the meeting and signed by any directors. Any such 5 meeting shall be held at such time and at such place, within or without the State of Delaware, as shall be determined by the body or person calling such meeting. Notice of such meeting stating the time and place thereof shall be given (a) by deposit of the notice in the United States mail, first class, postage prepaid, at least seven days before the day fixed for the meeting addressed to each director at his address as it appears on the Corporation's records or at such other address as the director may have furnished the Corporation for that purpose, or (b) by delivery of the notice similarly addressed for dispatch by telegraph, cable or radio or by delivery of the notice by telephone or in person, in each case at least two days before the time fixed for the meeting. SECTION 2.6. Presiding Officer and Secretary at Meetings. Each meeting of the Board of Directors shall be presided over by the President, if a director, or if he is not present by such member of the Board of Directors as shall be chosen by the meeting. The Secretary, or in his absence an Assistant Secretary, any, shall act as secretary of the meeting, or if no such officer is present, a secretary of the meeting shall be designated by the person presiding over the meeting. SECTION 2.7. Quorum. A majority of the whole Board of Directors shall constitute a quorum for the transaction of business, but in the absence of a quorum a majority of those present (or if only one be present, then that one) may adjourn the meeting, without notice other than announcement at the meeting, until such time as a quorum is present. Except as otherwise required by the Certificate of Incorporation or the By-Laws, the vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. SECTION 2.8. Meeting by Telephone. Members of the Board of Directors or of any committee thereof may participate in meetings of the Board of Directors or of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. SECTION 2.9. Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the Board of 6 Directors or of any committee thereof may be taken without a meeting all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing and the writing or writings are filed with the minutes of proceedings of the Board of Directors or of such committee. SECTION 2.10. Executive and Other Committees. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate an Executive tee and one or more other committees, each such committee to consist of one or more directors as the Board of Directors may from time to time determine. Any such committee, to the extent provided in such resolution or resolutions, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, including the power to authorize the seal of the Corporation to be affixed to all papers that may require it; but no such committee shall have such power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-Laws; and unless the resolution shall expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Each such Committee other than the Executive Committee shall have such name as may be determined from time to time by the Board of Directors. SECTION 2.11. Compensation. No director shall receive any stated salary for his services as a director or as a member of a committee but shall receive such compensation, if any, as may from time to time be fixed by the Board of Directors for attendance at each meeting of the Board of Directors or of a committee. He may also be reimbursed for his expenses in attending any meeting. However, any director who serves the 7 Corporation in any capacity other than as a member of the Board of Directors or of a committee may receive compensation therefor. ARTICLE THREE OFFICERS SECTION 3.1. Election; Qualification. The officers of the Corporation shall be a President, one or more Vice Presidents, a Treasurer and a Secretary, all of whom shall be elected by the Board of Directors, have such titles and duties as are set forth in a resolution adopted by the Board of Directors. The Board of Directors may elect such other officers as may from time to time determine. Two or more offices may be held by the same person. SECTION 3.2. Term of Office. Each officer shall hold office from the time of his election and qualification to the time at which his successor is elected and qualified, unless sooner he shall die or resign or shall be removed pursuant to Section 3.4. SECTION 3.3. Resignation. Any officer of the Corporation may resign at any time by giving written notice of such resignation to the Board of Directors, the President or the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 3.4. Removal. Any officer may be removed at any time, with or without cause, by the vote of a majority of the whole Board of Directors. SECTION 3.5. Vacancies. Any vacancy, however caused, in any office of the Corporation may be filled by the Board of Directors. SECTION 3.6. Compensation. The compensation of each officer shall be such as the Board of Directors may from time to time determine. 8 SECTION 3.8. President. The President shall be the chief executive officer of the Corporation and shall have charge of the general business and affairs of the Corporation, subject however to the right of the Board of Directors to confer specified powers on officers and subject generally to the direction of the Board of Directors and the Executive Committee, if any. SECTION 3.8. Vice President. Each Vice President shall have such powers and duties as generally pertain to the office of Vice President and as the Board of Directors or the President may from time to time prescribe. During the absence of the President or his inability to act, the Vice President, or if there shall be more than one Vice President, then that one designated by the Board of Directors, shall exercise the powers and shall perform the duties of the President, subject to the direction of the Board of Directors and the Executive Committee, if any. SECTION 3.9. Secretary. The Secretary shall keep the minutes of all meetings of stockholders and of the Board of Directors. He shall be custodian of the corporate seal and shall affix it or cause it to be affixed to such instruments as require such seal and attest the same and shall exercise the powers and shall perform the duties incident to the office of Secretary, subject to the direction of the Board of Directors and the Executive Committee, if any. SECTION 3.11. Treasurer. The Treasurer shall have care of all funds and securities of the Corporation and shall exercise the powers and shall perform the duties incident to the office of Treasurer, subject to the direction of the Board of Directors and the Executive Committee, if any. SECTION 3.12. Other Officers. Each other officer of the Corporation shall exercise the powers and shall perform the duties incident to his office, subject to the direction of the Board of Directors and the Executive Committee, if any. ARTICLE FOUR CAPITAL STOCK SECTION 4.1. Stock Certificates. The interest of each holder of stock of the Corporation shall be evidenced by a 9 certificate or certificates such form as the Board of Directors may from time to time prescribe. Each certificate shall be signed by or in the name of the Corporation by the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary. Any of or all the signatures appearing on any such certificate or certificates may be a facsimile. If any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent orreg-strar at the date of issue. SECTION 4.2. Transfer of Stock. Shares of stock shall be transferable on the books of the Corporation pursuant to applicable law and such rules and regulations as the Board of Directors shall from time to time prescribe. SECTION 4.3. Holders of Record. Prior to due presentment for registration of transfer the Corporation may treat the holder of record of a share of its stock as the complete owner thereof exclusively entitled to vote, to receive notifications and otherwise entitled to all the rights and powers of a complete owner thereof, notwithstanding notice to the contrary. SECTION 4.4. Lost, Stolen, Destroyed or Mutilated Certificates. The Corporation shall issue a new certificate of stock to replace a certificate theretofore issued by it alleged to have been lost, destroyed or wrongfully taken, if the owner or his legal representative (i) requests replacement before the Corporation has notice that the stock certificate has been acquired by a bona fide purchaser; files with the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss or destruction of any such stock certificate or the issuance of any such new stock certificate; and (iii) satisfies such other terms and conditions as the Board of Directors may from time to time prescribe. 10 ARTICLE FIVE MISCELLANEOUS SECTION 5.1. Indemnity. (a) The Corporation may indemnify, subject to the requirements of subsection (d) of this Section, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (b) The Corporation may indemnify, subject to the requirements of subsection (d) of this Section, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good 11 faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper. (c) To the extent that a director, officer, employee or agent of the Corporation, or a person serving in any other enterprise at the request of the Corporation, has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this Section, or in defense of any claim, issue or matter therein, the Corporation shall indemnify him against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (d) Any indemnification under subsections (a) and (b) of this Section (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of this Section. Such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders. (e) Expenses incurred by a director, officer, employee or agent in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the specific case upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be 12 determined that he is entitled to be indemnified by the Corporation as authorized in this Section. (f) The indemnification provided by this Section shall not limit the Corporation from providing any other indemnification permitted by law nor shall it be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent, and shall inure to the benefit of the heirs, executors and administrators of such a person. (g) The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Section. (h) For the purposes of this Section, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (i) For purposes of this Section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which 13 imposes duties on, or involves services by, such director, officer, employee, or agent with respect to any employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Section. SECTION 5.2 Waiver of Notice. Whenever notice required to be given by the Certificate of Incorporation, the By-Laws or any provisions of the General Corporation Law of the State of Delaware, a written waiver thereof, signed by the person entitled to notice, whether before or after the time required for such notice, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice. SECTION 5.3. Fiscal Year. The fiscal year of the Corporation shall start on such date as the Board of Directors shall from time to time prescribe. SECTION 5.4. Corporate Seal. The corporate seal shall be in such form as the Board of Directors may from time to time prescribe, and the same may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE SIX AMENDMENT OF BY-LAWS SECTION 6.1. Amendment. The By-Laws may be adopted, amended or repealed by the stockholders, or by the Board of Directors by a majority vote of the whole Board of Directors. 14 EX-99.T3B35 113 exhibit_t3b-35.txt Exhibit T3B-35 EXHIBIT A BY-LAWS OF NEW MARTINSVILLE HYDRO-OPERATIONS CORPORATION (hereinafter called the "Corporation") In these By-Laws, references to the Articles of Incorporation mean the provisions of the Articles of Incorporation (as that term is defined in the West Virginia Corporation Act) of the Corporation as from time to time in effect, and references to these By-Laws or to any requirement or provision of law mean these By-Laws or such requirement or provision of law from time to time in effect. ARTICLE I OFFICES Section 1. Registered Office. The registered office of the Corporation shall be CT Corporation System, 1200 Charleston National Plaza, Charleston, West Virginia 25301. Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of West Virginia the Board of Directors may from time to time determine. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual Meetings. The Annual Meeting of stockholders (the Meeting") shall be held on such date and at such time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which meeting the stockholders shall elect by a plurality vote a Board of Directors and transact such other business as may properly be brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting. No publication of the notice of meeting shall be required. A stockholder may waive the notice of meeting by attendance at the meeting, either in person or by proxy, either before or after the meeting, or as provided in Article VI of these By-Laws. 1 Section 3. Special Meetings. Unless otherwise prescribed by law or by the Articles of Incorporation, Special Meetings of stockholders (individually, "Special Meeting" and collectively, "Special Meetings", or any purpose or purposes, may be called at any time by the Board of Directors, the President or the Secretary and shall be called by any such officer at the request in writing of a majority of the Board of Directors or at the request in writing of stockholders owning a majority of the capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Written notice of the Special Meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less than ten (10) nor more than sixty days (60) before the date of the meeting to each stockholder entitled to vote at such meeting. No publication of the notice of meeting shall be required. A stockholder may waive the notice of meeting by attendance at the meeting, either in person or by proxy, either before or after the meeting, or as provided in Article VI of these By-Laws. Section 4. Record Date. The Board of Directors may fix a date, not less than ten (10) nor more than sixty (60) days preceding the date of any meeting of the stockholders, as a Record Date for determination of stockholders entitled to notice of, or to vote at, such meeting. The Board of Directors shall not close the books of the Corporation against transfers of shares during the whole or any part of such period. Section 5. Quorum. Except as otherwise provided by law or by the Articles of Incorporation, the recordholders of a majority of the capital stock issued and outstanding and entitled to vote at any meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting. Section 6. Voting. Unless otherwise required by law, the Articles of Incorporation or these By-Laws, any question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the stock represented and entitled to vote thereat. Each stockholder represented at a meeting of stockholders shall be entitled to cast one (1) vote for each share of the stock of the Corporation entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy, but no proxy shall be voted on or after three (3) years from its date, unless such proxy provided for a longer period. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by written ballot. Section 7. Consent of stockholders in Lieu of Meeting. Unless otherwise provided in the Articles of Incorporation, any action required or permitted to be taken at any Annual or 2 Special Meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a unanimous consent in writing, setting forth the action so taken, shall be signed by all the holders of outstanding stock who would have been entitled to vote upon the action if such meeting were held. Prompt notice of taking the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Section 8. List of stockholders Entitled to Vote. The officer of the Corporation who has charge of the stockledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders as of the Record Date entitled to vote at the meeting, arranged in alphabetical order and Showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during whole time thereof, and may be inspected by any stockholder of the Corporation who is present. Section 9. Stock Ledger. The stockledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stockledger, the list required by Section 8 of this Article or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. ARTICLE III DIRECTORS Section 1. Number and Election of Directors. The business and affairs of the Corporation shall be managed by the Board of Directors. Initially, the number of directors on the Board of Directors shall be one (i) and thereafter such number of directors may be increased or decreased from time to time by resolution by the Board of Directors, but in no event shall the number of directors be more than seven (7). No decrease by the Board of Directors shall have the effect of shortening the term of any incumbent director. Except as provided in Section 2 of this Article, directors shall be elected by a plurality of the votes cast at the Annual Meeting, and each director so elected shall hold office for the full term to which he shall have been elected and until his successor is duly elected and qualified, or until his earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. A director need not be a stockholder of the Corporation or a resident of the State of West Virginia. Section 2. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by (i) an affirmative vote of a majority of the remaining directors then in office, though less than a quorum of the Board of Directors, or (ii) by a sole remaining director, or (iii) by a majority vote of the holders of record shares of stock issued and outstanding and entitled to vote. Any directors so chosen shall hold office for the remainder of the full term of the class of directors in which the new directorship was created or the vacancy occurred and until such directors' successors are duly elected and qualified, or until their earlier resignation or removal. 3 Section 3. Duties and Powers. The business, affairs and property of the Corporation shall be managed by or under the directorship of the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Articles of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders. Section 4. Meetings. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the Chairman, if there be one, or the President. Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone or telegram on twenty-four (24) notice or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 5. Quorum. Except as may be otherwise specifically provided by law, the Articles of Incorporation or these By-Laws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 6. Actions of Board. Unless otherwise provided by the Articles of Incorporation or these, By-laws any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may betaken without a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee. Section 7. Meetings by Means of Conference Telephone. Unless otherwise provided by the Articles of Incorporation or these By-Laws, members of the Board of Directors of the Corporation, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 7 shall constitute presence in person at such meetings. Section 8. Committees. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not they constitute a quorum, 4 may unanimously appoint another member of the Board of Directors to act at the meeting in place of any absent or disqualified member. Any committee, to the extent allowed by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 9. Reimbursement of Expenses. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors. No such reimbursement shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefore. Members of special or standing committees may be allowed like reimbursement for attending committee meetings. Section 10. Removal. Unless otherwise provided by law, directors may be removed, with or without cause, at a Meeting of Shareholders called expressly for that purpose by a vote of a majority of the shares then entitled to vote at an election of directors. ARTICLE IV OFFICERS Section 1. General. The officers of the Corporation shall be chosen by the Board of Directors and shall consist of a President, a Treasurer and a Secretary. The Board of Directors, in its discretion, may also choose a chairman of the Board of Directors (who must be a director, and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, except the offices of President and Secretary unless otherwise allowed or prohibited by law, the Articles of Incorporation, or these By-Laws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board Directors, need such officers be directors of the Corporation. Section 2. Election. The Board of Directors at its first meeting held after each Annual Meeting of stockholders shall select the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until the earlier of their resignation or removal. Any officers elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of Directors. Section 3. Duties. The officers of the Corporation shall have such powers and duties as generally pertain to their offices, except as modified herein or by the Board of Directors, as well as such powers and duties as from time to time may be conferred by the Board of Directors. The Chairman of the Board, if there is one, shall have such duties as may be assigned to him by the Board of Directors and shall preside at meetings of the Board of Directors and at meetings of the stockholders. The President shall be the chief executive officer of the Corporation and shall have the general supervision over the business, affairs and property of the Corporation. 5 The Secretary and the Assistant Secretary, if any, of the Corporation shall record all proceedings at meetings and actions in writing of stockholders, directors and committees of directors, and shall exercise such additional authority and perform such additional duties as the Board of Directors may assign. The Treasurer shall have the custody of the corporate funds and securities and shall keep, or cause to be kept, full and accurate account of receipts and disbursements in books belonging to the Corporation and shall depositor to be deposited all monies and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. He or she shall disburse or cause to be disbursed the funds of the Corporation as may be ordered by the Board of Directors, the President or such other officer as the President may from time to time designate, taking proper vouchers for such disbursements. Section 4. Removal. Any officer may be removed, with or without cause, by the Board of Directors. Any vacancy in an office may be filled by the Board of Directors or a duly designated committee of the Board of Directors. Section 5. Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name and on behalf of the Corporation by the President or any Vice President and the Secretary, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of securityholders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time, confer like powers upon any other person or persons. ARTICLE V STOCK Section 1. Form of Certificates. The shares of stock of the Corporation shall be represented by certificates of stock, signed in the name of the Corporation (i) by the President or a Vice President, and (ii) by the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares of stock in the Corporation owned by the holder named in the certificate. Section 2. Signatures. When a certificate is countersigned by (i) a transfer agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Section 3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the mailing of an affidavit of the fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the 6 issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as may Direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed by law and in these By-Laws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by his attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be cancelled before a new certificate shall be issued. Section 5. Beneficial Owners. The Corporation shall been titled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law. ARTICLE VI NOTICES Section 1. Notices. Whenever written notice is required by law, the Articles of Incorporation or these By-Laws to be given to any director, member of a committee or stockholder, such notice shall be in writing and may be delivered by mail, addressed to such director, member of a committee, or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by telegram, telex, telecopier or cable. Section 2. Waivers of Notice. Whenever any notice is required by law, the Articles of Incorporation, or these By-Laws to be given to any director, member of a committee, or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE VII GENERAL PROVISIONS Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Articles of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares of capital stock of the Corporation. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any 7 such reserve. Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. Section 4. Corporate Seal. The Corporate Seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, West Virginia." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII INDEMNIFICATION Section 1. Right to Indemnification. The Corporation may indemnify any person to the fullest extent permitted by applicable law and such greater extent as applicable law may thereafter permit. The rights of an Indemnitee provided under the preceding sentence shall include, but not be limited to, the right to be indemnified to the fullest extent permitted by Section 31-1-9 of the West Virginia Corporation Act. Section 2. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under West Virginia law. Section 3. Indemnity Agreements. The Corporation may enter into indemnity agreements with the persons who are members of its Board of Directors from time to time, and with such officers, employees and agents as the Board may designate, such indemnity agreements to provide in substance that the Corporation will indemnify such persons to the full extent contemplated by this Article. ARTICLE IX MISCELLANEOUS Section 1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted, by the stockholders or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such alterations, amendments, repeals or adoptions must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the Board of Directors then in office. 8 EX-99.T3B36 114 exhibit_t3b-36.txt Exhibit T3B-36 OAHU WASTE ENERGY RECOVERY, INC. BYLAWS ARTICLE I OFFICES Section 1. The principal executive office shall be located in Fairfield, New Jersey. Section 2. The corporation may also have offices at such other places both within and without the State of California as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held in Fairfield, New Jersey, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of California as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of shareholders for any other purpose may be held at such time and place, within or without the State of California, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. If no other place is stated or fixed, shareholders' meetings shall be held at the principal executive office of the corporation. Section 2. Annual meetings of shareholders shall be held on such date and at such time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice of the annual meeting stating the place, day and hour of the meeting shall be given to each shareholder entitled to vote thereat not less than 10 (or, if sent by third-class mail, 30) nor more than 60 days before the date of the meeting. Notice may be sent by third-class mail only if the outstanding shares of the corporation are held of record by 500 or more persons (determined as provided in section 605 of the California General Corporation Law) on the record date for the shareholders' meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of California as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president, the board of directors, or the holders of not less than 10 percent of all the shares entitled to vote at the meeting and if the corporation has a chairman of the board of directors, special meetings of the shareholders may be called by the chairman. Section 3. Written or printed notice of a special meeting of shareholders, stating the time, place and purpose or purposes thereof, shall be given to each shareholder entitled to vote thereat not less than 10 (or, if sent by third-class mail, 30) nor more than 60 days before the date fixed for the meeting. Notice may be sent by third-class mail only if the outstanding shares of the corporation are held of record by 500 or more persons (determined as provided in section 605 of the California General Corporation Law) on the record date for the shareholders' meeting. 2 Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented and voting at the meeting (which shares voting affirmatively also constitute at least a majority of the required quorum), shall be the act of the shareholders unless the vote of a greater number or voting by classes is required by law or the articles of incorporation. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In all elections for directors, every shareholder entitled to vote shall have the right to vote, in person or by proxy, the number of shares of stock owned by him for as many persons 3 as there are directors to be elected, or, upon satisfaction of the requirements set forth in Section 708(b) of the California General Corporation Law, to cumulate the vote of said shares, and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which the shareholder's shares are normally entitled, or to distribute the votes on the same principle among as many candidates as he may see fit. Section 708(b) of the California General Corporation Law provides that no shareholder shall be entitled to cumulate votes for any candidate for the office of director unless such candidates' names have been placed in nomination prior to the voting and at least one shareholder has given notice at the meeting prior to the voting of his intention to cumulate his votes. Section 4. Unless otherwise provided in the articles, any action, except election of directors, which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Except to fill a vacancy in the board of directors not filled by the directors, directors may not be elected by written consent except by unanimous written consent of all shares entitled to vote for the election of directors. Any election of a director to fill a vacancy (other than a vacancy created by removal) not filled by the directors requires the written consent of a majority of the shares entitled to vote. ARTICLE V DIRECTORS Section 1. The number of directors shall be three. Directors need not be residents of the State of California nor shareholders of the corporation. The directors, other than the first 4 board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Unless otherwise provided in the articles of incorporation, vacancies, except for a vacancy created by the removal of a director, and newly created directorships resulting from any increase in the number of directors may be filled by a majority of the directors then in office, though less than a quorum, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify. Unless otherwise provided in the articles of incorporation any vacancy created by the removal of a director shall be filled by the shareholders by the vote of a majority of the shares entitled to vote at a meeting at which a quorum is present. Any vacancies, which may be filled by directors and are not filled by the directors, may be filled by the shareholders by a majority of the shares entitled to vote at a meeting at which a quorum is present. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these bylaws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of California, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall 5 have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of California. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telephone or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case, special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither 6 the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the articles of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the articles of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the bylaws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. The board of directors may designate one or more directors as alternate members of the executive committee. The executive committee shall not have authority: (1) To 7 approve any action which will also require the shareholders' approval; (2) To fill vacancies on the board or in any committee; (3) To fix the compensation of directors for serving on the board or on any committee; (4) To amend or repeal the bylaws or adopt new bylaws; (5) To amend or repeal any resolution of the board which by its express terms is not so amendable or repealable; (6) To make a distribution to the shareholders except at a rate or in a periodic amount or within a price range determined by the board; or (7) To appoint other committees of the board or the members thereof. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of incorporation or of these bylaws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Notice to any shareholder shall be given at the address furnished by such shareholder for the purpose of receiving notice. If such address is not given and if no address appears on the records of the corporation for such shareholder, notice may be given to such shareholder at the place where the principal executive office of the corporation is located or by publication at least once in a newspaper of general circulation in the county in which said principal executive office is located. If a notice of a shareholders' meeting is sent by mail it shall be sent by first-class mail, or, in case the corporation has outstanding shares held of record by 500 or more persons (determined as provided in Section 605 of the California General 8 Corporation Law) on the record date for the shareholders' meeting, notice may be by third-class mail. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the articles of incorporation or these bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors 9 are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 10 THE VICE-PRESIDENTS Section 10. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 11 THE CHIEF FINANCIAL OFFICER Section 13. The chief financial officer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as chief financial officer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The chief financial officer is, for the purpose of executing any documents requiring the signature of the "Treasurer," deemed to be the treasurer of the corporation. THE ASSISTANT TREASURERS Section 17. The assistant treasurers, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or 12 disability of the chief financial officer, perform the duties and exercise the powers of the chief financial officer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. Every holder of shares in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the chief financial officer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares and the class or series of shares owned by him in the corporation. If the shares of the corporation are classified or if any class of shares has two or more series, there shall appear on the certificate either (1) a statement of the rights, preferences, privileges and restrictions granted to or imposed upon each class or series of shares to be issued and upon the holders thereof; or (2) a summary of such rights, preferences, privileges and restrictions with reference to the provisions of the articles and any certificates of determination establishing the same; or (3) a statement setting forth the office or agency of the corporation from which shareholders may obtain, upon request and without charge, a copy of the statement referred to in item (1) heretofore. Every certificate shall have noted thereon any information required to be set forth by the California General Corporation Law and such information shall be set forth in the manner provided by such law. Section 2. Any or all of the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before 13 such certificate is issued, it may be issued by the corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. CLOSING OF TRANSFER BOOKS Section 5. In order that the corporation may determine the shareholders entitled to notice of any meeting or to vote or entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect of any other lawful action, the board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days prior to the date of such meeting nor more than 60 days prior to any other action. 14 A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting unless the board fixes a new record date for the adjourned meeting, but the board shall fix a new record date if the meeting is adjourned for more than 45 days from the date set for the original meeting. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of California. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the articles of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to any provisions of the articles of incorporation and the California General Corporation Law. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such 15 other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the date of its incorporation and the words "Corporate Seal, California". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These bylaws may be altered, amended or repealed or new bylaws may be adopted (a) at any regular or special meeting of shareholders at which a quorum is present or represented, by the affirmative vote of a majority of the stock entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting, or (b) by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board. The board of directors shall not make or alter any bylaw specifying a fixed 16 number of directors or the maximum or minimum number of directors and the directors shall not change a fixed board to a variable board or vice versa in the bylaws. The board of directors shall not change a bylaw, if any, which requires a larger proportion of the vote of directors for approval than is required by the California General Corporation Law. ARTICLE XIII DIRECTORS' ANNUAL REPORT Section 1. The directors shall cause to be sent to the shareholders not later than 120 days after the close of the fiscal year, an annual report which shall include a balance sheet as of the closing date of the last fiscal year, and an income statement of changes in financial position for said fiscal year. Said annual report shall be accompanied by any report thereon of independent accountants or, if there is no such report, the certificate of an authorized officer of the corporation that such statements were prepared without audit from the books and records of the corporation. This annual report is hereby waived whenever the corporation shall have less than 100 shareholders as defined in Section 605 of the California General Corporation Law. Except when said waiver applies, the annual report shall be sent to the shareholder at least 15 (or if sent by third-class mail, 35) days prior to the date of the annual meeting. The annual report may be sent by third-class mail only if the corporation has outstanding shares held by 500 or more persons (as determined by the provisions of Section 605 of the California General Corporation Law) on the record date for the shareholders' meeting. In addition to the financial statements included in the annual report, the annual report of the corporation, if it has more than 100 shareholders as defined in Section 605 of the California General Corporation Law and if it is not subject to the reporting requirements of Section 13 of the Securities and Exchange Act of 1934, or exempt from such registration by Section 12(g)(2) of said act, shall also describe 17 briefly: (1) Any transaction (excluding compensation of officers and directors) during the previous fiscal year involving an amount in excess of forty thousand dollars ($40,000) (other than contracts let at competitive bids or services rendered at prices regulated by law) to which the corporation or its parent or subsidiary was a party and in which any director or officer of the corporation or of a subsidiary or (if known to the corporation or its parent or subsidiary) any holder of more than 10 percent of the outstanding voting shares of the corporation had a direct or indirect material interest, naming such person and stating such person's relationship to the corporation, the nature of such person's interest in the transaction and, where practicable, the amount of such interest; provided, that in the case of a transaction with a partnership of which such person is a partner, only the interest of the partnership need be stated; and provided further that no such report need be made in the case of transactions approved by the shareholders under subdivision (a) of Section 310 of the California General Corporation Law. (2) The amount and circumstances of any indemnification or advances aggregating more than ten thousand dollars ($10,000) paid during the fiscal year to any officer or director of the corporation pursuant to Section 317 of the California General Corporation Law, provided, that no such report need be made in the case of indemnification approved by the shareholders under paragraph (2) of subdivision (e) of Section 317 of the California General Corporation Law. 18 EX-99.T3B37 115 exhibit_t3b-37.txt Exhibit T3B-37 OGDEN MARTIN SYSTEMS OF ONONDAGA FIVE CORP. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in Fairfield, New Jersey, at such place as nay be fixed from time to tine by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from tine to tine by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as 1 Exhibit T3B-37 may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during H the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided 2 Exhibit T3B-37 by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. 3 Exhibit T3B-37 ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held 4 Exhibit T3B-37 at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on five days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these 5 Exhibit T3B-37 by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, 6 Exhibit T3B-37 unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be 7 Exhibit T3B-37 given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at 8 Exhibit T3B-37 all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 10. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all 9 Exhibit T3B-37 meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind 10 Exhibit T3B-37 in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by 11 Exhibit T3B-37 the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than-ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. 12 Exhibit T3B-37 REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may 13 Exhibit T3B-37 from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. 14 Exhibit T3B-37 SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDENIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 15 EX-99.T3B38 116 exhibit_t3b-38.txt Exhibit T3B-38 OGDEN MARTIN SYSTEMS OF ONONDAGA FOUR CORP. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in Fairfield, New Jersey, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time 1 Exhibit T3B-38 and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary 2 Exhibit T3B-38 business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days 3 Exhibit T3B-38 before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall 4 Exhibit T3B-38 be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a 5 Exhibit T3B-38 vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized 6 Exhibit T3B-38 number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by 7 Exhibit T3B-38 these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at 8 Exhibit T3B-38 such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on five days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action 9 Exhibit T3B-38 required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. 10 Exhibit T3B-38 In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the 11 Exhibit T3B-38 corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at 12 Exhibit T3B-38 each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be 13 Exhibit T3B-38 deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. 14 Exhibit T3B-38 Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. 15 Exhibit T3B-38 Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 10. The vice-president, or if there shall be more than one, the vice-presidents in the order 16 Exhibit T3B-38 determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision be shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of 17 Exhibit T3B-38 the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so 18 Exhibit T3B-38 requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 19 Exhibit T3B-38 ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, 20 Exhibit T3B-38 transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that 21 Exhibit T3B-38 may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, 22 Exhibit T3B-38 or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. 23 Exhibit T3B-38 ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the 24 Exhibit T3B-38 stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the 25 Exhibit T3B-38 stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 26 EX-99.T3B39 117 exhibit_t3b-39.txt Exhibit T3B-32 RESOURCE RECOVERY SYSTEMS OF CONNECTICUT, INC. * * * * * B Y - L A W S * * * * * ARTICLE I OFFICES Section 1. The principal office shall be located in Hartford, Connecticut. Section 2. The corporation may also have offices at such other places both within and without the State of Connecticut as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held in Fairfield, New Jersey, at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as shall be designated from time to time by the board of directors and stated the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice of the annual meeting stating the place, day and hour of the meeting shall be delivered not less than seven nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Connecticut as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of shareholders may be called at any time, for any purpose or purposes, by the board of directors or by such other persons as may be authorized by law. Section 3. Written or printed notice of a special meeting stating the place, day and hour of the meeting and the 2 purpose or purposes for which the meeting is called, shall be delivered not less than seven nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present 3 or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the certificate of incorporation. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either person or by proxy executed writing by the shareholder or by his duly authorized attorney-in-fact. Section 4. Any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE V DIRECTORS Section 1. The number of directors shall be three. Directors need not be residents of the State of Connecticut nor shareholders of the corporation. The directors, other than 4 the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors. A director elected to fill a vacancy shall be elected for the unexpired portion of the term of his predecessor office. Any vacancy created by an increase the number of directorships shall be filled for the unexpired term by action of shareholders. Any other vacancy may be filled for the unexpired term by action of the sole remaining director office or by unanimous written consent of all the directors without a meeting or at a meeting of the board of directors by the concurring vote of a majority of the remaining directors in office, though such remaining directors are less than a quorum, though the number of directors at the meeting less than a quorum and though such majority is less than a quorum. A director elected to fill a newly created directorship shall 5 serve until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualified. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of Connecticut, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of Connecticut. 6 Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special 7 meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the certificate of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the by-laws or otherwise, may designate two or more directors to 8 constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice required to be given to any director or shareholder, shall not be construed to mean personal notice, but such notice may be given writing, by mail, addressed to such director or shareholder, at his address as appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the 9 provisions of the certificate of incorporation or these by-laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers 10 and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and 11 execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 10. The vice-president, or there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. 12 THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary, perform the duties and exercise 13 the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of 14 his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the president or a vice-president and the secretary or an assistant secretary or the treasurer or an assistant treasurer of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder 15 upon request and without charge, a full or summary statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations the relative rights and preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers of the corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been 16 lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. CLOSING OF TRANSFER BOOKS Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of 17 directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, seventy days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days, immediately preceding such meeting. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than seventy days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If the stock transfer books are not closed and no record date is fixed, the determination of shareholders entitled to notice of or to vote at a meeting, or to receive payment of a dividend, the date on which notice of the meeting mailed or the date on which the resolution of the board of directors declaring such dividend adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof. 18 REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Connecticut. LIST OF SHAREHOLDERS Section 7. The officer or agent having charge of the transfer books for shares shall make, at least five days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order, with the address of each and the number of shares held by each, which list, for a period five days prior to such meeting, shall be kept on file at the principal office of the corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original 19 share ledger or transfer book, or a duplicate thereof, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book or to vote at any meeting of the shareholders. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the certificate of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid cash, in property or shares of the capital stock, subject to any provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 20 CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Connecticut". The seal may be used by causing or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These by-laws may be altered, amended repealed or new by-lays may be adopted (a) at any regular or special meeting of shareholders at which a quorum is present or represented, by the affirmative vote of a majority of the 21 stock entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting, or (b) by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board. 22 Exhibit T3B-39 OMS ONONDAGA OPERATIONS, INC. ***** BY-LAWS ***** ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in the City of Fairfield, State of New Jersey, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1995, shall be held at such other date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by written ballot a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding 2 and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall 3 decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. 4 ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. 5 Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by facsimile communication; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one 6 director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of a majority of the board of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or 7 more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee 8 shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or 9 stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by facsimile telecommunication. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such 10 powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any tine by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and contracts requiring a seal, under the seal of the corporation except TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record 11 the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it 12 shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. 13 CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power 14 to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal bylaws. 15 EX-99.T3B40 118 exhibit_t3b-40.txt Exhibit T3B-40 OGDEN MARTIN SYSTEMS OF ONONDAGA THREE CORP. * * * * * B Y - L A W S * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in Fairfield, New Jersey, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 2 Section 8. A majority of the stockholders, holding stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking the corporate action without a meeting by less than unanimous 3 written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by--laws directed or required to be exercised or done by the stockholders. 4 MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on five days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by--laws, any action required or permitted to be taken at any meeting of the board of 5 directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by--laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any 6 other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by--laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by--laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these bylaws, notice is required to be given to any director or 7 stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by--laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice--president, a secretary and a treasurer. The board of directors may also choose additional vice--presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-- presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the 8 board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE--PRESIDENTS Section 10. The vice--president, or if there shall be more than one, the vice--presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES 9 Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful 10 performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice--chairman of the board of directors, or the president or a vice--president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect 11 as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not 12 be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the 13 stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by--laws may be altered, amended or repealed or new by--laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by--laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by--laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by--laws. 14 EX-99.T3B41 119 exhibit_t3b-41.txt Exhibit T3B-41 OGDEN MARTIN SYSTEMS OF ONONDAGA TWO CORP. ***** BY - LAWS ***** ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in Fairfield, New Jersey, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of 1 Exhibit T3B-41 Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the 2 Exhibit T3B-41 notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 3 Exhibit T3B-41 Section 8. A majority of the stockholders, holding stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the 4 Exhibit T3B-41 statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. 5 Exhibit T3B-41 ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or: by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority 6 Exhibit T3B-41 of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total, number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, 7 Exhibit T3B-41 provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on five days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director, in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of 8 Exhibit T3B-41 the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating, in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. 9 Exhibit T3B-41 COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided, in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or, authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as 10 Exhibit T3B-41 provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such, name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. 11 Exhibit T3B-41 COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or 12 Exhibit T3B-41 stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director, or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. 13 Exhibit T3B-41 Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers, of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of 14 Exhibit T3B-41 the corporation. Subject to the control of the board, be shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other, contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 15 Exhibit T3B-41 THE VICE-PRESIDENTS Section 10. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties `for the standing committees when required. He shall give, or cause to be given, notice of ail meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant 16 Exhibit T3B-41 secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined, by the board of directors shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all 17 Exhibit T3B-41 his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 18 Exhibit T3B-41 ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of' the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218 (a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such 19 Exhibit T3B-41 officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificate 4 shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. 20 Exhibit T3B-41 TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not 21 Exhibit T3B-41 be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends 22 Exhibit T3B-41 may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors~ may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or 23 Exhibit T3B-41 officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors 24 Exhibit T3B-41 or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws 25 EX-99.T3B42 120 exhibit_t3b-42.txt Exhibit T3B-42 OGDEN MARTIN SYSTEMS OF ONONDAGA, INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The office of the corporation shall be located in the County of New York, State of New York. Section 2. The corporation may also have offices at such other places both within and without the State of New York as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OP SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held in Fairfield, New Jersey, at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a 1 board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice of the annual meeting stating the place, date and hour of the meeting shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders may be held at such time and place within or without the State of New York as shall be stated in the notice of the meeting or in a duly, executed waiver of notice thereof. Section 2. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president, the board of directors, or the holders of not less than a majority of all the shares entitled to vote at the meeting. Section 3. Written or printed notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, Shall be 2 delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by, or at the direction of, the president, the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. The notice should also indicate that it is being issued by, or at the direction of, the person calling the meeting. Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which 3 might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall, be the act of the shareholders, unless the vote of a greater or lesser number of shares of stock is required by law or the certificate of incorporation. Section 3. Each outstanding share of stock having voting power shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Section 4. The board of directors in advance of any shareholders' meeting may appoint one or more inspectors to act at the meeting may appoint one or more inspectors to act at the meeting or any adjournment thereof. If inspectors are not so appointed, the person presiding at a shareholders' meeting may, and, on the request of any shareholder entitled to vote thereat, shall appoint one or more inspectors. In case any person appointed as inspector fails to appear or act, the vacancy may be filled by the board in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector at such 4 meeting with strict impartiality and according to the best of his ability. Section 5. Whenever shareholders are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all outstanding shares entitled to vote thereon. ARTICLE V DIRECTORS Section 1. The number of directors shall be three (3) Directors shall be at least eighteen years of age and need not be residents of the State of New York nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, except as hereinafter provided, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Any or all of the directors may be removed, with or without cause, at any time by the vote of the shareholders at a special meeting called for that purpose. Any director may be removed for cause by the action of the directors at a special meeting called for that purpose. 5 Section 3. Unless otherwise provided in the certificate of incorporation, newly created directorships resulting from an increase in the board of directors and all vacancies occurring in the board of directors, including vacancies caused by removal without cause, may be filled by the affirmative vote of a majority of the board of directors, however, if the number of directors then in office is less than a quorum then such newly created directorships and vacancies may be filled by a vote of a majority of the directors then in office. A director elected to fill a vacancy shall hold office until the next meeting of shareholders at which election of directors is the regular order of business, and until his successor shall have been elected and qualified. A director elected to fill a newly created directorship shall - serve until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualified. Section 4. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the shareholders. Section 5. The directors may keep the books of the corporation, except such as are required by law to be kept 6 within the state, outside the State of New York, at such place or places as they may from time to time determine. Section 6. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of New York. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such 7 time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Notice of a meeting need not be given to any director who submits a signed waiver of notice whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater or lesser number is required by law or by the certificate of incorporation. The vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the vote of a greater number is required by law or by the certificate of incorporation. If a quorum shall not be present at any meeting 8 of directors, the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. Section 8. Unless the certificate of incorporation provides otherwise, any action required or permitted to be taken at a meeting of the directors or a committee thereof may be taken without a meeting if a consent in writing to the adoption of a resolution authorizing the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the entire board, may designate, from among its members, an executive committee and other committees, 9 each consisting of three or more directors, and each of which, to the extent provided in the resolution, shall have all the authority of the board, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but, such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice of a meeting is required to be given under the provisions of the statutes or under the provisions of the certificate of incorporation or these by-laws, a waiver thereof in writing signed by the person 10 or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Any two or more offices may be held by the same person, except the offices of president and secretary. When all the issued and outstanding stock of the corporation is owned by one person, such person may hold all or any combination of offices. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. 11 Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried, into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice-president or, if there shall be more than one, the vice-presidents in the order determined by 12 the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of, the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and, when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. 13 Section 10. The assistant secretary or, if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such 14 surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates or shall be uncertified. Certificates shall be signed by the chairman or vice-chairman of the board or the president or a vice-president and the secretary or an assistant secretary or the treasurer or an assistant treasurer of the corporation and may be sealed with the seal of the corporation or a facsimile thereof 15 When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full statement of the designation, relative rights, preferences, and limitations of the shares of each class authorized: to be issued and, if the corporation is authorized to issue any class of preferred shares in series, the designation, relative rights, preferences and limitations of each such series so far as the same have been fixed and the authority of the board of directors to designate and fix the relative rights, preferences and limitations of other series. Within a reasonable time after the issuance or transfer of any uncertificated shares there shall be sent to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to paragraphs (b) and (c) of Section 508 of the New York Business Corporation Law, Section 2. The signatures of the officers of the corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose 16 facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. 17 FIXING RECORD DATE Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action, the board of directors may fix, in advance, a date as the record date for any such determination of shareholders. Such date shall not be more than fifty nor less than ten days before the date of any meeting nor more than fifty days prior to any other action. When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof, unless the board fixes a new record date for the adjourned meeting. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or 18 interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of New York. LIST OF SHAREHOLDERS Section 7. A list of shareholders as of the record date, certified by the corporate officer responsible for its preparation or by a transfer agent, shall be produced at any meeting upon the request thereat or prior thereto of any shareholder. If the right to vote at any meeting is challenged, the inspectors of election, or person presiding thereat, shall require such list of shareholders to be produced as evidence of the right of the persons challenged to vote at such meeting and all persons who appear from such list to be shareholders entitled to vote thereat may vote at such meeting. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the certificate of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in shares of the capital stock or in the corporation's bonds or its property, including the shares or bonds of other 19 corporations subject to any provisions of law and of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, New York". The seal 20 may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These by-laws may be amended or repealed or new by-laws may be adopted at any regular or special meeting of shareholders at which a quorum is present or represented, by the vote of the holders of shares entitled to vote in the election of any directors, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting. These by-laws may also be amended or repealed or new by-laws may be adopted by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board. If any by-law regulating an impending election of directors is adopted, amended or repealed by the board, there shall be set forth in the notice of the next meeting of shareholders for the election of directors the by-law so adopted, amended or repealed, together with precise statement of the changes made. By-laws adopted by the board of directors may be amended or repealed by the shareholders. Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D 21 attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed in Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the 22 Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amend so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A arid B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia H. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further 23 RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. ____________________________________ ______________________________ R. RICHARD ALBON SCOTT G. MACKIN ______________________________ BRUCE W. STONE 24 Exhibit T3B-42 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill., Inc. Haverbill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc Ogden Recycling Systems of Indianapolis, Inc. 25 Exhibit T3B-42 EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc.. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. 26 Exhibit T3B-42 EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. 27 Exhibit T3B-42 Action by Unanimous Consent in Writing of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990. The undersigned, constituting the holder of all the outstanding shares of the corporations listed on Exhibits A, B, and C attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by, the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of the corporation listed on Exhibit A hereto be amended to change the number of directors of such corporation to "not less than three nor more than five"; and it is further RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit B hereto be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of each of the corporations listed on Exhibit C hereto to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott G. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver, all documents and take all actions which in their opinion are necessary or 28 desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS, INC. By:__________________________ Scott G. Mackin First Executive Vice President EXHIBIT A Ogden Martin Systems of Indianapolis, Inc. 29 Exhibit T3B-42 EXHIBIT B Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntsville, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanslaus, Inc. OMS Equity of Stanislaus, Inc. 30 Exhibit T3B-42 EXHIBIT C Ogden Marion Land Corp. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Hilisborough, Inc. Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Indianapolis, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Oakland, Inc Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 31 Ogden Martin Systems of Tulsa., Inc. Ogden Martin Systems of Union, Inc. 32 EX-99.T3B43 121 exhibit_t3b-43.txt Exhibit T3B-43 LIMITED LIABILITY COMPANY AGREEMENT OF OGDEN MARTIN OPERATIONS OF UNION LLC THIS LIMITED LIABILITY COMPANY AGREEMENT (the "AGREEMENT") is entered into as of July __, 1998 by and between Ogden Projects, Inc., a Delaware corporation ("PROJECTS"), and Ogden Waste to Energy, Inc., a Delaware corporation ("WTE"), or any permitted successor, assignee or transferee of Projects and WTE and any other persons or entities who shall in the future execute and deliver this Agreement pursuant to the provisions hereof shall hereinafter collectively be referred to as the "MEMBERS." WHEREAS, the Members have agreed to form a limited liability company pursuant to the provisions of the New Jersey Limited Liability Company Act (the "NEW JERSEY LLC ACT") under the name "Ogden Martin Operations of Union LLC" (the "LLC") pursuant to a Certificate of Formation, dated as of June 22, 1998 (the "CERTIFICATE"); and WHEREAS, the Members desire to operate the LLC for the purposes hereinafter set forth, subject to the terms and conditions hereof. NOW, THEREFORE, in consideration of the foregoing, and of the covenants and agreements hereinafter set forth, it is hereby agreed as follows: 1. CERTAIN DEFINITIONS Unless the context otherwise specifies or requires, capitalized terms used herein shall have the respective meanings assigned thereto in ADDENDUM I, attached hereto, and incorporated herein by reference, for all purposes of this Agreement (such definitions to be equally applicable to both the singular and the plural forms of the terms defined). Unless otherwise specified, all references herein to Articles or Sections are to Articles or Sections of this Agreement. 2. FORMATION; NAME; PLACE OF BUSINESS 2.1. FORMATION OF LLC; CERTIFICATE OF FORMATION 1 The Members of the LLC hereby: 2.1.1. approve and ratify the filing of the Certificate with the New Jersey Secretary of State on June 23, 1998; 2.1.2. confirm and agree to their status as Members of the LLC; 2.1.3. execute this Agreement for the purpose of establishing the rights, duties, and relationship of the Members; 2.1.4. (i) agree that if the laws of any jurisdiction in which the LLC transacts business so require, the Board of Managers or the appropriate officers or other authorized representatives of the LLC shall file, or shall cause to be filed, with the appropriate office in that jurisdiction, any documents necessary for the LLC to qualify to transact business under such laws; and (ii) agree and obligate themselves to execute, acknowledge, and cause to be Med for record, in the place or places and manner prescribed by law, any amendments to the Certificate as may be required, either by the New Jersey LLC Act, by the laws of any jurisdiction in which the LLC transacts business, or by this Agreement, to reflect changes in the information contained therein or otherwise to comply with the requirements of law for the continuation, preservation, and operation of the LLC as a limited liability company under the-New Jersey LLC Act; and 2.1.5. each represent and warrant that such Member is duly authorized to execute, deliver, and perform its obligations under this Agreement and that the Person, if any, executing this Agreement on behalf of such Member is duly authorized to do so and that this Agreement is binding on and enforceable against such Member in accordance with its terms. 2.2. NAME OF LLC The name under which the LLC shall conduct its business is" OGDEN MARTIN OPERATIONS OF UNION LLC". The business of the LLC may be conducted under any other name permitted by the New Jersey LLC Act that is deemed necessary or desirable by the Board of Managers; in its sole and absolute discretion. The Board of Managers or the appropriate officers or other authorized representatives of the LLC promptly shall execute, Me, and record, or cause to be executed, filed and recorded, any assumed or fictitious name certificates required by the laws of 2 the State of New Jersey or any state in which the LLC conducts business. 2.3. PLACE OF BUSINESS The location of the principal place of business of the LLC shall be as determined by the Board of Managers. The Board of Managers may hereafter change the principal place of business of the LLC to such other place or places within the United States as the Board of Managers may from time to time determine, provided that, if necessary, the Board of Managers shall amend, or shall cause to be amended, the Certificate in accordance with the applicable requirements of the New Jersey LLC Act. The Board of Managers may establish and maintain such other offices and additional places of business of the LLC, either within or without the State of New Jersey, as it deems appropriate. 2.4. REGISTERED AGENT; REGISTERED OFFICE The name of the initial registered agent of the LLC shall be Corporation Service Company, and the registered office of the LLC shall be located at 830 Bear Tavern Road, West Trenton, New Jersey 08628. The registered office and the registered agent of the LLC may be changed by the Board of Managers from time to time in accordance with the then applicable provisions of the New Jersey LLC Act and any other applicable laws. 3. PURPOSES AND POWERS OF LLC 3.1. PURPOSES The purposes of the LLC shall be to operate, maintain, repair and provide any other services in connection with the operation of the waste-to-energy facility located at 1499 Route 1 North, City of Rahway, County of Union, New Jersey, pursuant to an Operating and Maintenance Agreement between the Company and Ogden Martin Systems of Union, Inc., and any amendment or supplement thereto, and to enter into any lawful transaction and engage in any lawful activity in furtherance of these purposes and as may be necessary, incidental Dr convenient to carry out the business of the LLC as contemplated by this Agreement. 3.2. POWERS The LLC shall have the power to do any and all acts and things necessary, appropriate, advisable, or convenient for the furtherance and accomplishment of the purposes of the LLC, 3 including, without limitation, to engage in any kind of activity and to enter into and perform obligations of any kind necessary to or in connection with, or incidental to, the accomplishment of the purposes of the LLC, so long as said activities and obligations may be lawfully engaged in or performed by a limited liability company under the New Jersey LLC Act. 4. TERM OF LLC The existence of the LLC commenced on the date upon which the Certificate was duly Med with the New Jersey Secretary of State and shall continue until dissolved and liquidated in accordance with the provisions of SECTION 10. 5. CAPITAL 5.1. INITIAL CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS OF MEMBERS 5.1.1. INITIAL CAPITAL CONTRIBUTIONS. Concurrently with the execution of this Agreement, each of the Members shall make the initial Capital Contribution .set forth opposite such members name in Exhibit A attached hereto. Except as otherwise provided in the New Jersey LLC Act, the Members shall not be required to make any Capital Contributions to the LLC other than as set forth in this SECTION 5.1 and in SECTION 5.2. 5.1.2 PERCENTAGE INTERESTS. Each Member shall own an LLC Interest representing the Percentage Interest in the LLC as set forth opposite such Members name in Exhibit A. 5.2. ADDITIONAL CAPITAL CONTRIBUTIONS OF THE MEMBERS 5.2.1. PAYMENT OF ADDITIONAL CAPITAL CONTRIBUTIONS. In the event that the Board of Managers specifies that the LLC requires additional capital to perform its duties, the Members shall contribute funds to the LLC as additional Capital Contributions (the "ADDITIONAL CAPITAL CONTRIBUTIONS") in amounts proportionate to the Members respective. Percentage Interests. 5.2.2. FAILURE TO MAKE REQUIRED ADDITIONAL CAPITAL CONTRIBUTIONS. 4 If a Member fails to make such Members Additional Capital Contribution to the LLC as required pursuant to SECTION 5.2.1 (the "NON-CONTRIBUTING MEMBER"), any other Member, upon making its own required Additional Capital Contribution, may (but is not required to), without prejudice to such other rights or remedies as may be available under, applicable law, contribute to the LLC an additional amount equal to the Non-Contributing Members unpaid Additional Capital Contribution. Thereupon, the Percentage Interests of the Members respective LLC Interests for all purposes of this Agreement and the LLC shall be adjusted to provide that the Percentage Interest represented by each Members LLC Interest shall be a percentage equal to (a) the total amount of Capital Contributions made by such Member, divided by (b) the total amount of Capital Contributions made by all Members. In the event that more than one Member desires to make a Non-Contributing Members unpaid Additional Capital Contribution, each such Member shall be entitled to contribute a proportionate share of such Non-Contributing Members unpaid Additional Capital Contribution based on each of such Members Percentage Interests. 5.3. ISSUANCE OF ADDITIONAL LLC INTERESTS The Board Of Managers is hereby authorized to cause the LLC from time to time to issue to Members or other Persons (who, upon such issuance and the execution by such Persons of such documents as the Board of Managers deems necessary or appropriate to evidence such Persons agreement to be admitted as a Member and to be bound by the terms and conditions of the Certificate and this Agreement, shall automatically become Members) additional LLC Interests for such consideration and in one or more classes, or one or more series of any such classes, with such designations, preferences and relative, participating, optional or other special rights, powers and duties, including rights, powers and duties senior to the then-existing LLC Interests, all as shall be determined by the Board of Managers, subject to the requirements, of New Jersey law, including without limitation, (i) the allocations of items of LLC income, gain, loss, deduction and credit to each such class or series of LLC Interests; (ii) the right of each such class or series of LLC Interests to share in LLC distributions; and (iii) the rights of each such class or series of LLC Interests upon dissolution and liquidation of the LLC. 5.4 CAPITAL ACCOUNTS Each Member shall have a capital account which shall be maintained in accordance with Treasury regulations sections 5 1.704-1(b)(2)(iv) and 1.704-2 (a "CAPITAL ACCOUNT"). The provisions in this Agreement pertaining to allocations and adjustments of the Capital Accounts and taxable income, gains, losses, deductions and credits are intended to comply with Code section 704(b) and the regulations thereunder. The Members agree to make appropriate modifications to such allocations and adjustments when needed to comply with this Code section or the Regulations thereunder to the extent such modifications would not result in any material modification of the economic arrangement of the Members as reflected in the allocation, distribution and liquidation provisions of this Agreement. 5.5. NEGATIVE CAPITAL ACCOUNTS Except to the extent the Members are required or elect to make contributions to the capital of the LLC under SECTIONS 5.1, 5.2 AND 5.3, no Member shall be required to pay to the LLC or to any other Member any deficit or negative balance which may exist from time to time in such Members Capital Account. 5.6. NO INTEREST ON CAPITAL CONTRIBUTIONS OR CAPITAL ACCOUNTS No Member shall be entitled to receive any interest on its Capital Contributions or its outstanding Capital Account balance. 5.7. ADVANCES TO LLC A Member may advance funds to the LLC in excess of the amounts contributed by it to the capital of the LLC in any amount and on terms upon which the Member and the Board of Managers may agree. Any such advances by a Member shall be treated as a loan and shall not result in any increase in the amount of such Members Capital Account or entitle it to any increase in the Percentage Interest represented by such Members LLC Interest. The amounts of such advances shall be a debt of the LLC to such Member- and shall. be payable or collectible only out of the LLC Assets in accordance with terms and conditions agreed upon by the Board of Managers. 5.8. LIABILITY OF MEMBERS AND BOARD OF MANAGERS Except as otherwise provided in the New Jersey LLC Act, the debts, obligations and liabilities of the LLC, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the LLC, and none of the Members or the Board Members shall be obligated personally for 6 any such debt, obligation or liability of the LLC solely by reason of being a. Member or a Board Member. The failure of the LLC to observe any formalities or requirements relating to the exercise of its powers or management of its business or affairs under the New Jersey LLC Act or this Agreement shall not be grounds for imposing personal liability on any Member or Board Member for liabilities of the LLC. 5.9. RETURN OF CAPITAL Except upon the dissolution of the LLC or as may be specifically provided in this Agreement, no Member shall have the right to demand or to receive the return of all or any part of its Capital Account or its Capital Contributions to the LLC. 6. ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS 6.1. ALLOCATION OF NET INCOME OR NET LOSS Subject to SECTION 6.4, the net income or net loss of the LLC, if any, for each Fiscal Year (or portion thereof) for both book and tax accounting purposes, and all items thereof, shall be allocated to the Members in accordance with their respective Percentage Interests. 6.2. ALLOCATION OF INCOME AND LOSS WITH RESPECT TO LLC INTERESTS TRANSFERRED If any LLC Interest is transferred during any Fiscal Year in accordance with this Agreement, the net income or net loss attributable to such Interest for such Fiscal Year shall be allocated between the transferor and the transferee by closing the books of the LLC as of the date of the transfer. 6.3. DISTRIBUTIONS The Board of Managers shall determine whether to cause the LLC to make distributions of cash or other property to the Members from time to time, and if the Board of Managers determines that such distributions should be made, the Board of Managers shall determine the amount of cash and other property which the LLC should distribute. Except to the extent that any class of LLC Interests is issued in accordance with this Agreement with rights to receive distributions that are superior to the distribution rights, of any other class of LLC Interests, all distributions shall be made to the Members in proportion to their Percentage Interests. 7 6.4. ALLOCATIONS OF NONRECOURSE DEDUCTIONS; MINIMUM GAIN CHARGEBACK; QUALIFIED INCOME OFFSET 6.4.1. ALLOCATION OF NONRECOURSE DEDUCTIONS Notwithstanding any other provision of this Agreement, (i) "PARTNER NONRECOURSE DEDUCTIONS" (as defined in Treasury regulations section 1.704-2(i)), if any, of the LLC shall be allocated to the Member who bears the economic risk of loss within the meaning of Treasury regulations section 1.704-2(i), and (ii) "NONRECOURSE DEDUCTIONS" (as defined in Treasury regulations section 1.704-2(b)) of the LLC shall be allocated to the Members in accordance with their Percentage Interests. 6.4.2. ALLOCATIONS IN ACCORDANCE WITH SECTION 704(b) This Agreement shall be deemed to include "qualified income offset," "minimum gain chargeback" and "partner nonrecourse debt minimum gain chargeback" provisions within the meaning of the Treasury regulations under section 704(b) of the Code. Accordingly, notwithstanding any other provision of this Agreement, items of gross income shall be allocated to the Members on a priority basis to the extent and in the manner required by such provisions. Any allocations required to be made pursuant to this SECTION 6.4.2 (the "REGULATORY ALLOCATIONS") shall be offset, to the extent possible, by special allocations of other items of LLC income, gain, loss, or deduction pursuant to this SECTION 6.4.2., so that, after such special offsetting allocations have been made, each Members Capital Account balance will be equal to the Capital Account balance such Member would have had if the Regulatory Allocations had not been made. 7. MEMBERS AND MANAGEMENT 7.1. MEMBERS 7.1.1. MEETINGS The Members shall meet at least once each Fiscal Year at such place, on such date and at such time as may be fixed by the Board of Managers (unless such meeting shall be waived by all of the Members). Special meetings of the Members may be called by the Board of Managers, and shall be called by the Board of Managers upon the request of any Member upon ten (10) days notice to all Members in writing or by telephone or facsimile. Meetings may be held by telephone or any other 8 communication by means of which all participating Members can simultaneously hear each other during the meeting. 7.1.2. REQUIRED VOTE; VOTING RIGHTS All Members shall be entitled to vote with respect to all decisions to be made by Members, and to be, approved, any action requiring or properly submitted for approval by the Members must be approved by the Members holding a majority of the Percentage Interests, except as otherwise provided herein. 7.1.3. ACTION BY WRITTEN CONSENT Any action to be taken by the Members may be taken without a meeting if a written consent setting forth the action so taken is signed by the Members holding a majority of the Percentage Interests, except as otherwise provided herein. 7.1.4. WAIVERS OF NOTICE Whenever the giving of any notice is required by statute or this Agreement, a waiver thereof, in writing and delivered to the LLC signed by the person or persons entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance of a Member at a meeting shall constitute a waiver of notice of such meeting. 7.2. MANAGEMENT OF THE LLC BY THE BOARD OF MANAGERS Subject to this Agreement and the New Jersey LLC Act, the Members hereby unanimously agree that the responsibility for management of the business and affairs of the LLC shall be vested in a Board of Managers (the "BOARD OF MANAGERS"), and that the Board of Managers (acting on behalf of the LLC) shall have all right, power, and authority, to manage, operate and control the business and affairs of the LLC and to do or cause to be done any and all acts, at the expense of the LLC, deemed by the Board of Managers to be necessary or appropriate to effectuate the purposes of the LLC, including all of the power and authority of a "manager" under the New Jersey LLC Act. Except as otherwise expressly provided in this Agreement or as may be approved by the Board of Managers, no Member shall have any authority, right, or power to bind the LLC, or to manage or control, or to participate in the management or control of, the business and affairs of the LLC in any manner whatsoever. 7.2.1. AUTHORITY OF BOARD OF MANAGERS 9 The Board of Managers shall preside over all meetings of Members. The Board of Managers shall be primarily responsible for the management of the business and financial affairs of the LLC. The Board of Managers shall have full authority over the day-to-day general management and direction of the business and operations of the LLC, except with respect to matters requiring approval of the Members. The Board of Managers may sign and execute in the name of the LLC, without specific authorization by the Members, deeds, mortgages, bonds, contracts, indebtedness or other instruments, except as otherwise required by law. Third parties dealing with the LLC shall be entitled to rely conclusively upon the power and authority of the Board of Managers as set forth herein. 7.2.2. COMPOSITION The initial members of the Board of Managers initially shall consist of three members. The Members must unanimously elect each Board Member. The number and method of appointment of Board of Members may be changed only by agreement of all of the Members. The Members hereby unanimously appoint R. Richard Ablon, Scott G. Mackin and Bruce W. Stone to serve as initial Board Members until their successors take office pursuant to unanimous action of, the Members. 7.2.3. MEETINGS Regular meetings of the Board of Managers may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the Board of Managers. Special meetings of the Board of Managers may be called by the President, upon three (3) days notice to all Board Members in writing or by telephone or facsimile transmission. Meetings may be held by telephone or any other communication by means of which all participating Board Members can simultaneously hear each other during the meeting. 7.2.4. QUORUM No action may be taken at a meeting of the Board of Managers unless a quorum consisting of a majority of Board Members is present. 7.2.5. VOTING RIGHTS Each Board Member shall be entitled to one vote with respect to all matters submitted to the Board of Managers for approval (including any matter in which a Board Member, a 10 Member, or an Affiliate may have a direct or indirect interest), except with respect to a determination to grant indemnification pursuant to SECTION 7.8.1., in which event a Board Member seeking indemnification hereunder shall have no vote with respect to indemnification of such Board Member. Except as otherwise expressly provided in this Agreement, any action or approval by the Board of Managers must be approved by the Majority Vote of the Board Members. 7.2.6. VOTING RIGHTS A corporation and its wholly owned subsidiary and sister corporations are deemed to be one contributor under New Jersey law. 7.2.7. ACTION BY WRITTEN CONSENT Any action to be taken by the Board of Managers may be taken without a meeting if a written consent setting forth the action so taken is signed by the Board Members having voting power to cast not less than the minimum number of votes necessary to take the action if taken at a meeting of the Board of Managers. All Board Members shall be given notice of any proposed action by written consent not less than three (3) days prior to its approval pursuant to this SECTION 7.2.5., and any Board of Member who does not sign the written consent shall be given written notice of such approval by the Secretary of the LLC promptly after the written consent is adopted. 7.3. OFFICERS 7.3.1. CHAIRMAN OF THE BOARD OF MANAGERS A Person shall be appointed to serve as chairman of the Board of Managers (the "CHAIRMAN OF THE BOARD OF MANAGERS") to preside over all meetings of Members and the Board of Managers and to exercise such other powers and authority as the Board of Managers from time to time may prescribe. R. Richard Ablon is hereby appointed to serve as the initial Chairman of the Board of Managers. Upon his death, resignation, or other inability to serve in such capacity, the Board of Managers by Majority Vote shall appoint a Person to serve as his successor. 7.3.2. PRESIDENT A Person shall be appointed to serve as president of the LLC (the "PRESIDENT"). Scott G. Mackin is hereby appointed to serve as the initial President. Upon his death, resignation, 11 or other inability to serve in such capacity, the Board of Managers by Majority Vote shall appoint a Person to serve as his successor. The President shall be the chief executive officer of the LLC and shall be primarily responsible for the overall management of the business and financial affairs of the LLC. Subject to the specific terms of any employment agreement with the LLC, the President shall have full authority over the general management and direction of the business and operations of the LLC, except with respect to matters requiring approval of the Board of Managers or approval of the Members. The President may sign and execute in the name of the LLC, without specific authorization by the Board of Managers, deeds, mortgages, bonds, contracts or other instruments, except in cases where approval of the same has been expressly delegated by the Board of required by law otherwise to be signed or executed. Third parties dealing with the LLC shall be entitled to rely conclusively upon the power and authority of the President as set forth herein. 7.3.3. VICE PRESIDENTS The Board of Managers may appoint one or more vice presidents of the LLC (each a "VICE PRESIDENT"). Each Vice President shall have such duties and responsibilities as shall be delegated to them by the Board of Managers and the President. Each Vice President may sign and execute in the name of the LLC, without specific authorization by the Board of Managers, deeds, mortgages, bonds, contracts or other instruments, except in cases where approval of the same has been expressly delegated by the Board of Managers or by this Agreement to some other officer or agent of the LLC or shall be required by law or the terms of any employment agreement with the Vice President otherwise to be signed or executed. Third parties dealing with the LLC shall be entitled to rely conclusively upon the power and authority of the Vice President as set forth herein. 7.3.4. SECRETARY Jeffrey It. Horowitz is hereby appointed to serve as the Secretary of the LLC (the "SECRETARY"). Upon his death, resignation, removal by the Board of Managers, or other inability to serve in such capacity, the Board of Managers by Majority Vote may appoint a Person to serve as his successor. Subject to the specific terms of any employment agreement with the LLC, the Secretary, at the direction of the President, shall prepare and distribute to the Board Members an agenda in advance of each meeting of the Board of Managers and shall prepare and distribute promptly to each Board Member written minutes of all 12 meetings of the Board of Managers. The Secretary shall also be responsible for preparing and distributing to the Board Members any notices received by the LLC or otherwise called for by this Agreement to be given by the LLC. The Secretary shall perform such other duties as may be specified by the Board of Managers or the President. 7.3.5. TREASURER William E. Whitman is hereby appointed to serve as the Treasurer of the LLC (the "TREASURER"). Upon his death, resignation, removal by the Board of Managers, or other inability to serve in such capacity, the Board of Managers by Majority Vote may appoint a Person to serve as his successor. Subject to the specific terms of any employment agreement with the LLC, the Treasurer shall have charge of the funds of the LLC. The Treasurer shall be the chief financial officer of the LLC and shall keep full and accurate accounts of all receipts and disbursements of the LLC in books belonging to the, LLC and shall deposit all monies and other valuable effects in the name and to the credit of the LLC in such depositories as may be designated by the President. The Treasurer shall disburse the funds of the LLC as may be ordered by the President, and shall render to the President, whenever he may require it, an account of all his transactions undertaken as Treasurer and an account of the business and financial position of the LLC. The Treasurer shall perform such other duties as may be specified by the Board of Managers or the President. 7.3.6. OTHER OFFICERS The Board of Managers may appoint such other officers of the LLC upon terms and conditions the Board of Managers deems necessary and appropriate. Any officer shall hold his or her respective office unless and until such officer is removed by the Board of Managers. Any two offices may be held by the same person, except that in no event shall the President and the Secretary be the same person. 7.3.7. REMOVAL OF OFFICERS; VACANCIES The Chairman of the Board of Managers, the President, each Vice President, and the Treasurer may be removed with or without cause, at any time, by the Board of Managers. All other officers of the LLC may be removed at any time, with or without cause, by the Board of Managers or by the President. Vacancies in the offices of Chairman of the Board of Managers, the President, each Vice President, and the Treasurer shall be 13 filled by the Board of Managers; vacancies in all other offices shall be filled by the Board of Managers or the President. 7.3.8. THIRD PARTY RELIANCE Third parties dealing with the LLC shall be entitled to rely conclusively upon the power and authority of the officers of the LLC as set forth herein. 7.4. FIDUCIARY RELATIONSHIP No Member or the Board of Managers shall be liable to the LLC or its Members for monetary damages for breach of fiduciary duty or otherwise liable, responsible or accountable to the LLC or its Members for monetary damages or otherwise for any acts performed, or for any failure to act; provided, however, that this provision shall not eliminate or limit the liability of the Board of Managers (i) for any breach of the Board of Managers duty of loyalty to the LLC or its Members, (ii) for acts or omissions which involve intentional misconduct or a knowing violation of law, or (iii) for any transaction from which the Board of Managers received any improper personal benefit. 7.5. COMPENSATION OF BOARD OF MANAGERS; REIMBURSEMENT The Board of Managers, as such, shall not receive any stated compensation for services. All expenses incurred with respect to the organization, operation, and management of the LLC shall be borne by the LLC. The Board of Managers shall be entitled to reimbursement from the LLC for direct expenses allocable to the organization, operation, and management of the LLC. 7.6. OTHER ACTIVITIES OF MEMBERS AND AFFILIATES Subject to any specific agreement to the contrary, any Member or any Affiliate thereof may have other business interests or may engage in other business ventures of any nature or description whatsoever, whether currently existing or hereafter created and may compete, directly or indirectly, with the business of the LLC. No Member or Affiliate thereof shall incur any liability to the LLC as a result of such Members or such Affiliates pursuit of such other business interests, ventures and competitive activity, and neither the LLC nor the other Members shall have any right to participate in such other business ventures or to receive or share in any income or profits derived therefrom. 14 7.7. CERTAIN TRANSACTIONS The LLC is expressly permitted in the normal course of its business to enter into transactions with any and all Members or with any Affiliate of any or all Members provided that the price and other terms of such transactions are not less favorable to the LLC than those generally prevailing with respect to comparable transactions between unrelated parties. 7.8. INDEMNIFICATION OF THE MEMBERS, THE BOARD OF MANAGERS AND ANY AFFILIATE 7.8.1. INDEMNITY The LLC, its receiver or its trustee shall indemnify, defend and hold each Member, each Board Member, each officer of the LLC and each Affiliate thereof (and their respective partners, officers, employees and agents) (individually, in each case an "INDEMNITEE") harmless to the fullest extent permitted by law from and against any expense, loss, damage or liability incurred or connected with, or any claim, suit, demand, loss, judgment, liability, cost or expense (including reasonable attorneys fees) arising from or related to, the Company or any act or omission of the Member or the Board of Managers on behalf of the Company (exclusive of acts taken as an independent contractor for the Company), and amounts paid in settlement of any of the foregoing, provided that the same were not the result of fraud, gross negligence, or reckless or intentional misconduct on the part of the Member, the Board Member or the officer against whom a claim is asserted. Prior to the final disposition of a claim, demand, action, suit, or proceeding subject to this SECTION 7.8., upon the request of the Indemnitee, the LLC from time to time shall advance to the Indemnitee amounts equal to the documented and reasonable expenses incurred by the Indemnitee in defending such claim, demand, action, suit, or proceeding, provided that the LLC receives an undertaking by or on behalf of the Indemnitee to repay the amount of such advances, if it shall be determined in a judicial proceeding or a binding arbitration that such Indemnitee is not entitled to be indemnified as authorized in this SECTION 7.8. 7.8.3. OTHER RIGHTS The indemnification provided by this SECTION 7.8. shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, vote of the Members, as a 15 matter of law or equity, or otherwise, both as to an action in the Indemnitees capacity as a Member, a Board Member, an officer of the LLC or any Affiliate thereof, or their respective partners, officers, employees and agents, and as to an action in another capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns, and administrators of the Indemnitee. 7.8.4. INSURANCE The LLC may purchase and maintain insurance on behalf of the Board of Managers and such other Persons as the Board of Managers shall determine against any liability that may be asserted against or expense that may be incurred by such Persons in connection with the offering of interests in the LLC or the business or activities of the LLC, regardless of whether the LLC would have the power to indemnify such Persons against such liability under the provisions of this Agreement. 7.8.5. INTEREST IN TRANSACTION An Indemnitee shall not be denied indemnification in whole or in part under this SECTION 7.8. or otherwise by reason of the fact that the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted or not expressly prohibited by the terms of this Agreement. 7.8.6. BENEFIT The provisions of this SECTION 7.8. are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. 7.9. AMENDMENT OF THIS AGREEMENT Any amendment or modification to this Agreement may be made only upon the written consent of the Members holding a majority of the Percentage Interests, except as otherwise provided herein and except for any amendment requiring additional Capital contributions. 8. BANK ACCOUNTS; BOOKS AND RECORDS; STATEMENTS; TAXES; FISCAL YEAR 8.1. BANK ACCOUNTS 16 All funds of the LLC shall be deposited in its name in such checking and savings accounts, time deposits or certificates of deposit, or other accounts at such banks as shall be designated by the Board of Managers. The Board of Managers shall arrange for the appropriate conduct of such account or accounts. 8.2. BOOKS AND RECORDS The Board of Managers shall keep, or cause to be kept, accurate, full and complete books and accounts showing assets, liabilities, income, operations, transactions and the financial condition of the LLC. Such books and accounts shall be prepared on the cash or accrual basis of accounting, as determined by the Board of Managers. Any Member, or its respective designee, shall have access thereto at any reasonable time during regular business hours and shall have the right to copy said records at its expense. 8.3. ACCOUNTING DECISIONS All decisions as to accounting matters, except as specifically provided to the contrary herein, shall be made by the Board of Managers. 8.4. WHERE MAINTAINED The books, accounts and records of the LLC at all times shall be maintained at the LLCs principal office Or such other place of business as the officers of the LLC may determine. 8.5. TAX MATTERS PARTNER The Members with a majority of the Percentage Interests from time to time shall appoint a person (who shall be a Member) to act as the "tax matters partner" of the LLC, as provided in Regulations pursuant to section 6231 of the Code, and may replace the Person so designated. The Members hereby appoint __________________ to act as the initial tax matters partner of the LLC. Each Member hereby approves of such designation and agrees to execute, certify, acknowledge, deliver, swear to, file, and record at the appropriate public offices such documents as may be deemed necessary or appropriate to evidence such approval. 8.6. FISCAL YEAR 17 The fiscal year of the LLC for financial, accounting, Federal, state and local income tax purposes initially shall be the calendar year (the "FISCAL YEAR"). The Board of Managers shall have authority to change the beginning and ending dates of the Fiscal Year if the Board of Managers deems such change to be necessary or appropriate. 9. TRANSFER OF LLC INTERESTS, 9.1. DEFINITION The term "transfer" when used in this SECTION 9 with respect to LLC Interests, shall include any sale, assignment, gift, pledge, hypothecation, mortgage, exchange, or other disposition, except that such term shall not include any pledge, mortgage, or hypothecation of or granting of a security interest in LLC Interests in connection with any financing obtained on behalf of the LLC. 9.2. TRANSFERS LLC Interests are transferable upon the transferee of such LLC Interest executing and delivering a copy of this Agreement to the Board of Managers. Upon such execution and delivery, the transferee of a LLC Interest shall become a substituted Member. Unless and until a transferee is admitted as a substituted Member, the transferee shall have no right to exercise any of the powers, rights, and privileges of a Member hereunder. A Member who has transferred his entire LLC Interest in accordance with SECTION 9.2 to a transferee who is admitted as a substituted Member hereunder shall cease to be a Member upon the effective date of such admission and thereafter shall have no further powers, rights, and privileges as a Member hereunder except as provided in SECTION 6.3 and SECTION 8.5. 10. DISSOLUTION AND LIQUIDATION 10.1. EVENTS CAUSING DISSOLUTION The .LLC-shall be dissolved and its affairs wound up upon the occurrence of any of the following events: (a) the consent in writing to dissolve and wind up the affairs of the LLC by all of the Members; (b) the sale or other disposition (voluntarily or involuntarily) by the LLC of all or substantially all of the LLC Assets and the collection of all amounts derived from any such 18 sale or other disposition, including all amounts payable to the LLC under any promissory notes or other evidences of indebtedness taken by the LLC (unless the Board of Managers shall elect to distribute such indebtedness to the Members in liquidation), and the satisfaction of contingent liabilities of the LLC in connection with such sale or other disposition; and (c) the occurrence of any event that, under the New Jersey LLC Act, would cause the dissolution of the LLC or that would make it unlawful for the business of the LLC to be continued. 10.2. RIGHT TO CONTINUE BUSINESS OF THE LLC Upon an event described in SECTION 10.1.(C) (but not an event described in SECTION 10.1.(C) that makes it unlawful for the business of the LLC to be continued), the LLC thereafter shall be dissolved and liquidated unless, within ninety (90) days after the event described in such SECTION 10.1.(C), an election to continue the business of the LLC shall be made in writing by all Members. If such an election to continue the LLC is made, then the LLC shall continue until another event causing dissolution in accordance with this Article 10 shall occur. 10.3. CANCELLATION OF CERTIFICATE OF FORMATION Upon the dissolution and the completion of winding up of the LLC, the Certificate of Formation shall be canceled in accordance with the applicable provisions of the New Jersey LLC Act. 10.4. DISTRIBUTIONS UPON DISSOLUTION Upon the dissolution of the LLC, the Board of Managers (or any other person or entity responsible for winding up, the affairs of the LLC) shall proceed without any unnecessary delay to pay or make due provision for the payment of all debts, liabilities and obligations of the LLC. The Board of Managers (or any other person or entity responsible for winding up the affairs of the LLC) shall distribute any LLC Assets remaining after the payment of all debts, liabilities and obligations of the LU) (including, without limitation, all amounts owing to a Member under this Agreement or under any agreement between the LLC and a Member entered into by the Member other than in its capacity as a Member of the LLC), the payment of expenses of liquidation of the LLC, and the establishment of a reasonable reserve in an amount estimated by the Board of Managers to be sufficient to pay any amounts reasonably anticipated to be 19 required to be paid by the LLC, which shall be distributed to the Members first, pro rata, in proportion to the positive balances, if any, in their respective Capital Accounts until such Capital Accounts are reduced to zero sums, and second, the remaining LLC Assets, if any, shall be distributed to the Members, pro rata, in accordance with their respective LLC Interests. 10.5. REASONABLE TIME FOR WINDING TIP A reasonable time shall be allowed for the orderly winding up of the business and affairs of the LLC and the liquidation of its assets pursuant to SECTION 10.4. in order to minimize any losses otherwise attendant upon such a winding up. 11. MISCELLANEOUS PROVISIONS 11.1. ADDITIONAL ACTIONS AND DOCUMENTS Each Member hereby agrees to take or cause to be, taken such further actions, to execute, acknowledge, deliver and filed or cause to be executed, acknowledged, delivered and filed such further documents and instruments, and to, use best efforts to obtain such consents as may be necessary or as may be reasonably requested in order fully to effectuate the purposes, terms and conditions of this Agreement, whether before, at or after the closing of the transactions contemplated by this Agreement. 11.2. NOTICES All notices, demands, requests or other communications which may be or are required to be given, served, or sent by a Member pursuant to this Agreement shall be in writing and shall be hand delivered (including delivery by courier), mailed by first-class, registered or certified mail, return receipt requested, postage prepaid, or transmitted by telegram, telex or facsimile transmission, addressed as set forth on Exhibit A attached hereto. Each Member may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice, demand, request or communication which shall be delivered, mailed or transmitted in the manner described above shall be deemed sufficiently given, served, sent or received for all purposes at such time as it is delivered to the addressee (with an affidavit of personal delivery, the return receipt, the delivery receipt, or (with respect to a telex) the answer back 20 being deemed conclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation. 11.3. EXPENSES Except as otherwise expressly provided in this Agreement, each Member shall each pay its own expenses (including its own legal fees and expenses) in connection with the preparation, negotiation and execution of this Agreement and in their roles as Members of the LLC. 11.4. SEVERABILITY The invalidity of any one or more provisions hereof or of any other agreement or instrument given pursuant to or in connection with this Agreement shall not affect the remaining portions of this Agreement or any such other agreement or instrument or any part thereof, all of which are inserted conditionally on their being held valid in law; and in the event that one or more of the provisions contained herein or therein should be invalid, or should operate to render this Agreement or any such other agreement or instrument invalid, this Agreement and such, other agreements and instruments shall be construed as if such invalid provisions had not been inserted. 11.5. SURVIVAL It is the express intention and agreement of the Members that all covenants, agreements, statements, representations, warranties and indemnities made in this Agreement shall survive the execution and delivery of this Agreement. 11.6. WAIVERS Neither the waiver by a Member of a breach of or a default under any of the provisions of this Agreement, nor the failure of a Member, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right, remedy or privilege hereunder, shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights, remedies or privileges hereunder. 11.7. EXERCISE OF RIGHTS No failure or delay on the part of a Member or the LLC in exercising any right, power or privilege hereunder and no 21 course of dealing between the Members or between a Member and the LLC shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise of any right, power or privilege. The rights and remedies herein expressly provided are cumulative and not exclusive of any other rights or remedies which a Member or the LLC would otherwise have at law or in equity or otherwise. 11.8. BINDING EFFECT Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon and shall inure to the benefit of the Members and their respective hefts, devises, executors, administrators, legal representatives, successors and assigns. 11.9. LIMITATION ON BENEFITS OF THIS AGREEMENT Subject to SECTION 7.8 and SECTION 8.6, it is the explicit intention of the Members that no person or entity other than the Members and the LLC is or shall be entitled to bring any action to enforce any provision of this Agreement against any Member or the LLC, and that the covenants, undertakings and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the Members (or their respective successors and assigns as permitted hereunder) and the LLC. 11.10. ENTIRE AGREEMENT This Agreement (including Addendum I and the Exhibits hereto) contains the entire agreement between the Members with respect to the transactions contemplated herein, and supersedes all prior oral or written agreements, commitments or understandings with respect to the matters provided for herein and therein. I 11.11. HEADINGS Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof. 11.12. GOVERNING LAW 22 This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of New Jersey (but not including the choice of law rules thereof). 11.13. EXECUTION IN COUNTERPARTS To facilitate execution, this Agreement may be executed in two counterparts; and it shall not be necessary that the signatures of, or on behalf of, each party, or that the signatures of all persons required to bind any party, appear on each counterpart; but it shall be sufficient that the signature of, or on behalf of, each party, or that the signatures of the persons required to bind any party, appear on one or more of the counterparts. All counterparts shall collectively constitute a single agreement. It shall not be necessary in making proof of this Agreement to produce or account for more than a number of counterparts containing the respective signatures of, or on behalf of, all of the parties hereto. IN WITNESS WHEREOF, the undersigned have caused this Limited Liability Company Agreement to be duly executed on their behalf as of the day and year first hereinabove set forth. ODGEN PROJECTS, INC. Attest: ________________________________ By: ________________________________ Name: William E. Whitman Title: Chief Financial Officer and Treasurer OGDEN WASTE TO ENERGY, INC. Attest: ________________________________ By: ________________________________ Name: William E. Whitman Title: Chief Financial Officer and Treasurer 23 Exhibit T3B-43 ADDENDUM I DEFINITIONS "ADDITIONAL CAPITAL CONTRIBUTION" -- As defined in Section 5.2.1. "AFFILIATE" -- When used with reference to a specified Person, means (i) any Person that directly or indirectly through one or more intermediaries controls or is controlled by or is under common control with the specified Person, (ii) any Person that is an officer or director of; general partner in or trustee of, or serves in a similar capacity with respect to, the specified Person or of which the specified Person is an officer, director, general partner or trustee, or with respect to which the specified Person serves in a similar capacity, (iii) any Person for which an officer or director of, general partner in or trustee of, or individual serving in a similar capacity with respect to, the specified Person serves in any such capacity, and (iv) any relative or spouse of the specified Person who makes his or her home with that of the specified Person. As used in this definition of "Affiliate", the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. "AGREEMENT" -- This Limited Liability Company Agreement, as it may be amended or supplemented from time to time. "BOARD MEMBER" -- A Person appointed by the Members to serve on the Board of Managers. "BOARD OF MANAGERS" -- The group of Persons appointed by the Members pursuant to SECTION 7.2 who are vested with the responsibility and authority for management of the business and affairs of the LLC. "CAPITAL ACCOUNT" -- As defined in Section 5.4. "CAPITAL CONTRIBUTION" -- Any property (including cash) contributed to the LLC by or on behalf of a Member. "CERTIFICATE" -- The Certificate of Formation of the LLC, dated as of June. 22, 1998, and any and all amendments thereto, Med on behalf of the LLC with the New Jersey Secretary of State as required under the New Jersey LLC Act. i "CHAIRMAN OF THE BOARD OF MANAGERS" -- As defined in Section 7.3.1. "CODE" -- The Internal Revenue Code of 1986, as in effect and hereafter amended, and, unless the context otherwise requires, applicable regulations thereunder. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of future law. "FISCAL YEAR" -- As defined in Section 8.6. "INDEMNITEE" -- As defined in SECTION 7.8. "LLC" -- Ogden Martin Operations of Union LLC, a New Jersey limited liability company. "LLC ASSETS" -- All assets and property, whether tangible or intangible and whether real, personal, or mixed, at any time owned by or held for the benefit of the LLC. "LLC INTEREST" -- As to any Member, all of the interest of that Member in the LLC, including, without limitation, such Members (i) right to a distributive share of the income, gain, losses and deductions of the LLC in accordance with this Agreement, and (ii) right to a distributive share of LLC Assets. "MAJORITY VOTE" -- The vote of a majority of the Board Members present at any meeting at which a quorum is present. "MEMBER" -- The signatories to this Agreement, or any other Person who in the future shall execute and deliver this Agreement, or other documents as the Members deems necessary or appropriate to evidence such Persons agreement to be admitted as a Member and be bound by the terms and conditions of the Certificate and this Agreement, and be admitted to the LLC as a new Member pursuant to the provisions hereof. "NEW JERSEY LLC ACT" -- The New Jersey Limited Liability Company Act, as amended. "NON-CONTRIBUTING MEMBER" -- As defined in Section 5.2.2. "PERCENTAGE INTEREST" -- A Members ownership interest in the LLC by virtue of its LLC Interest expressed as a percentage of the ownership interests of all Members. ii "PERSON" -- Any individual, corporation, association, partnership, limited liability company, joint venture, trust, estate, or other entity or organization. "REGULATIONS" -- The regulations issued by the United States Department of the Treasury under the Code as now in effect and as they may be amended from time to time, and any successor regulations. "TRANSFER" -- As defined in SECTION 9.1. iii Exhibit T3B-43 EXHIBIT A
NAME OF MEMBER INITIAL CAPITAL CONTRIBUTION PERCENTAGE INTEREST - -------------- ---------------------------- ------------------- Ogden Projects, Inc. $99.00 99.00% 40 Lane Road P.O. Box 2615 Fairfield, NJ 07007-2615 Ogden Waste to Energy, Inc. $ 1.00 1.00% 40 Lane Road P.O. Box 2615 Fairfield, NJ 07007-2615
iv EX-99.T3B44 122 exhibit_t3b-44.txt Exhibit T3B-44 OPW ASSOCIATES, INC. ***** BY - LAWS ***** ARTICLE I OFFICES Section 1. The principal office shall be located in Hartford, Connecticut. Section 2. The corporation may also have offices at such other places both within and without the State of Connecticut as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held at such place, either within or without the State of Connecticut, as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as may be determined by the board of directors, if not a legal holiday, and if a legal holiday, then on the next secular day following, at which they shall elect by a plurality vote, a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice of the annual meeting stating the place, day and hour of the meeting shall be delivered not less than seven nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, 1 or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Connecticut as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of shareholders may be called at any time, for any purpose or purposes, by the board of directors or by such other persons as may be authorized by law. Section 3. Written or printed notice of a special meeting stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered not less than seven nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at 2 any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the certificate of incorporation. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Section 4. Any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE V DIRECTORS Section 1. The number of directors shall be not less than three or more than five (see 5/25/90 shareholder amendment.) Directors need not be residents of the State of Connecticut nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. 3 Section 2. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors. A director elected to fill a vacancy shall be elected for the unexpired portion of the term of his predecessor in office. Any vacancy created by an increase in the number of directorships shall be filled for the unexpired term by action of shareholders. Any other vacancy may be filled for the unexpired term by action of the sole remaining director in office or by unanimous written consent of all the directors without a meeting or at a meeting of the board of directors by the concurring vote of a majority of the remaining directors in office, though such remaining directors are less than a quorum, though the number of directors at the meeting is less than a quorum and though such majority is less than a quorum. A director elected to fill a newly created directorship shall serve until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualified. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of Connecticut, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have 4 authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of Connecticut. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. 5 Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the certificate of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the by--laws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. 6 ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the certificate of incorporation or these by-laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. 7 Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, 8 perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the 9 corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the president or a vice-president and the secretary or an assistant secretary or the treasurer or an 10 assistant treasurer of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full or summary statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers of the corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. 11 LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. CLOSING OF TRANSFER BOOKS Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, seventy days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days, immediately preceding such meeting. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any 12 such determination of shareholders, such date in any case to be not more than seventy days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If the stock transfer books are not closed and no record date is fixed, the determination of shareholders entitled to notice of or to vote at a meeting, or to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the board of directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Connecticut. LIST OF SHAREHOLDERS Section 7. The officer or agent having charge of the transfer books for shares shall make, at least five days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order, with the address of each and the number of shares held by each, which list, for a period of five days prior to such meeting, shall be kept on file at the principal office of the corporation and shall be subject to inspection by any 13 shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original share ledger or transfer book, or a duplicate thereof, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book or to vote at any meeting of the shareholders. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the certificate of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to any provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from tine to time designate. 14 FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Connecticut". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted (a) at any regular or special meeting of shareholders at which a quorum is present or represented, by the affirmative vote of a majority of the stock entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting, or (b) by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board. 15 BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990 The undersigned, constituting the bolder of all the outstanding shares of the corporations listed on Exhibits A, B, and C attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit A hereto be amended to change the number of directors of each corporation to "not less than three nor more than five"; and it is further RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit B hereto be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of each of the corporations listed on Exhibit C hereto to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott G. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN PROJECTS, INC. By:____________________________ Scott G Mackin First Executive Vice President 16 EXHIBIT A Ogden Projects of Wallingford, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. 17 EXHIBIT B Ogden Projects of Anaheim, Inc. Ogden Projects of Haverhill, Inc. 18 EXHIBIT C Ogden Environmental Services, Inc. Ogden Land Management, Inc. Ogden Projects of Anaheim, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Projects of Wallingford, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Martin Systems, Inc. Ogden Recycling Systems, Inc. 19 BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without ~he formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision 20 over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. ____________________________ ______________________ R. RICHARD ABLON SCOTT G. MACKIN ___________________________ BRUCE W. STONE 21 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. 22 EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Carnpo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 23 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. 24 EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. 25 EX-99.T3B45 123 exhibit_t3b-45.txt Exhibit T3B-45 OPWH, INC. * * * * * BY- LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in the City of Fairfield, State of New Jersey, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the 1 Exhibit T3B-45 notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than thirty nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during 2 Exhibit T3B-45 ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than thirty nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. 3 Exhibit T3B-45 Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting 4 Exhibit T3B-45 power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to 5 Exhibit T3B-45 vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are 6 Exhibit T3B-45 no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. 7 Exhibit T3B-45 Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like 8 Exhibit T3B-45 manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by--laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by--laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of 9 Exhibit T3B-45 directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors 10 Exhibit T3B-45 in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or 11 Exhibit T3B-45 committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, 12 Exhibit T3B-45 by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. 13 Exhibit T3B-45 ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be one or more presidents, a vice--president, a secretary and a treasurer. The board of directors may also choose additional vice--presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by--laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose one or more presidents, one or more vice-presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be 14 Exhibit T3B-45 removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice--president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) 15 Exhibit T3B-45 shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice--presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. 16 Exhibit T3B-45 Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. 17 Exhibit T3B-45 Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the 18 Exhibit T3B-45 corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. 19 Exhibit T3B-45 LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of 20 Exhibit T3B-45 the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the 21 Exhibit T3B-45 board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. 22 Exhibit T3B-45 Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. 23 Exhibit T3B-45 FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by--laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or 24 Exhibit T3B-45 adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by--laws. 25 EX-99.T3B46 124 exhibit_t3b-46.txt Exhibit T3B-46 OGDEN MARTIN SYSTEMS OF PASCO, INC. ***** B Y - L A W S ***** ARTICLE I OFFICES Section 1. The registered office shall be located in Plantation, Florida. Section 2 The corporation may also have offices at such other places both within and without the State of Florida as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held in Fairfield, New Jersey, at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as may be determined by the board of directors if not a legal holiday, and if a legal 1 holiday, then on the next secular day following, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice of the annual meeting stating the place, day and hour of the meeting shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. The notice shall also set forth the purpose or purposes for which the meeting is called. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Florida as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of shareholders may be called at any time, for any purpose or purposes, by the board of directors or by such other persons as may be authorized by law. 2 Section 3. Written or printed notice of a special meeting stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. 3 Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the articles of incorporation. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. ARTICLE V DIRECTORS Section 1. The number of directors shall be three. (See 5/25/90 Shareholder Amendment.) Directors need not be residents of the State of Florida nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Vacancies and newly created directorships resulting from any increase in the number of directors may be 4 filled by a majority of the directors then in office, though less than a quorum, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these bylaws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of Florida, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. 5 ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of Florida. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. 6 Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the articles of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the articles of incorporation. Members of the board of directors shall be deemed present at a meeting of such board if a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, is used. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. 7 ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the bylaws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. Section 2. In the absence or disqualification from voting of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of such absent or disqualified member. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of incorporation or of these by- 8 laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the articles of incorporation or these bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a 9 president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, 10 except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant 11 secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, 12 or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the president or a vice-president and the secretary or an assistant secretary of the 13 corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full or summary statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. 14 LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFER OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. FIXING OF RECORD DATE Section 5. The board of directors may fix a date not more than sixty days prior to the date set for any meeting of the shareholders as the record date as of which the shareholders of record who have the right to and are entitled to notice of 15 and to vote at such meeting and any adjournment thereof shall be determined. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Florida. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the articles of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to any provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, 16 in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Florida". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These bylaws may be altered, amended or repealed or new bylaws may be adopted by the affirmative vote of 17 a majority of the board of directors at any regular or special meeting of the board. 18 Exhibit T3B-46 Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also chose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: 1 "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and herby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott C. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further 2 RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. ___________________ ___________________ R. RICHARD ABLON SCOTT G. MARKIN ___________________ BRUCE W. STONE 3 Exhibit T3B-46 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. Exhibit T3B-46 EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. Exhibit T3B-46 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. Exhibit T3B-46 EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. Exhibit T3B-46 Action by Unanimous Consent in Writing of of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990 The undersigned, constituting the holder of all the outstanding shares of the corporations listed on Exhibits A, B, and C attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of the corporation listed on Exhibit A hereto be amended to change the number of directors of such corporation to "not less than three nor more than five"; and it is further RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit B hereto be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of each of the corporations listed on Exhibit C hereto to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott C. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS, INC. By:__________________________ Scott G. Mackin First Executive Vice President 2 Exhibit T3B-46 EXHIBIT A Ogden Martin Systems of Indianapolis, Inc. Exhibit T3B-46 EXHIBIT B Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntsville, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. Exhibit T3B-46 EXHIBIT C Ogden Marion Land Corp. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Indianapolis, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Martin Systems of Union, Inc. EX-99.T3B47 125 exhibit_t3b-47.txt Exhibit T3B-47 BY-LAWS OF OGDEN PLANT SERVICES OF NEW JERSEY, INC. (a New Jersey corporation) ARTICLE I SHAREHOLDERS 1. CERTIFICATES REPRESENTING SHARES. Certificates representing shares shall set forth thereon the statements prescribed by Section 14A:7--11, and, where applicable, by Sections 14A:5--21 and 14A:12-5, of the New Jersey Business Corporation Act and by any other applicable provision of law and shall be signed by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the President or a Vice-President and may be counter-signed by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer and may be sealed with the corporate seal or a facsimile thereof. Any or all other signatures upon a certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of its issue. A card which is punched, magnetically coded, or otherwise treated so as to facilitate machine or automatic processing, may be used as a share certificate if it otherwise complies with the provisions of Section 14A:7-11 of the New Jersey Business Corporation Act. The corporation may issue a new certificate for shares in place of any certificate theretofore issued by it, alleged to have been lost or destroyed, and the Board of Directors may require the owner of any lost or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate or the issuance of any such new certificate. 1 2. FRACTIONAL SHARE INTERESTS. Unless otherwise provided in its certificate of incorporation, the corporation may, but shall not be obliged to, issue fractions of a share and certificates therefor. By action of the Board, the corporation may, in lieu of issuing fractional shares, pay cash equal to the value of such fractional share or issue scrip in registered or bearer form which shall entitle the holder to receive a certificate for a full share upon the surrender of such scrip aggregating a full share. A certificate for a fractional share shall entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any distribution of assets of the corporation in the event of liquidation, but scrip shall not entitle the holder to exercise such voting rights, receive dividends or participate in any such distribution of assets unless such scrip shall so provide. All scrip shall be issued subject to the condition that it shall become void if not exchanged for certificates representing full shares before a specified date. 3. SHARE TRANSFERS. Upon compliance with provisions restricting the transferability of shares, if any, transfers of shares of the corporation shall be made only on the share record of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and on surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes due thereon, if any. 4. RECORD DATE SHAREHOLDERS. The Board of Directors may fix, in advance, a date as the record date for determining the shareholders with regard to any corporate action or event and, in particular, for determining the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof; to give a written consent to any action without a meeting; or to receive payment of any dividend or allotment of any right. Any such record date shall in no case be more than sixty days prior to the shareholders' meeting or other corporate action or event to which it relates. Any such record date for a shareholders' meeting shall not be less than ten days before the date of the meeting. Any such record date to determine shareholders entitled to give a written consent shall not be more than sixty days before the date fixed for tabulation of the consents or, if no date has been fixed for tabulation, more than sixty days before the last day on which consents received may be counted. If no such record date is fixed, the record date for a shareholders' meeting shall be the close of 2 business on the day next preceding the day on which notice is given, or, if no notice is given, the day next preceding the day on which the meeting is held; and the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the resolution of the Board of Directors relating thereto is adopted. When a determination of shareholders of record for a shareholders' meeting has been made as provided in this section, such determination shall apply to any adjournment thereof, unless the Board of Directors fixes a new record date under this section for the adjourned meeting. 5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a meeting of shareholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term "share" or "shares" or "shareholder" or "shareholders" refers to an outstanding share or shares and to a holder or holders when the corporation is authorized to issue only one class of shares, and said reference is also intended to include any outstanding share or shares and any holder or holders of record of outstanding shares of any class upon which or upon whom the Certificate of Incorporation confers such rights where there are two or more classes or series of shares or upon which or upon whom the New Jersey Business Corporation Act confers such rights notwithstanding that the Certificate of Incorporation may provide for more than one class or series of shares, one or more of which are limited or denied such rights thereunder. 6. SHAREHOLDER MEETINGS. -- TIME. The annual meeting shall be held at the time fixed, from time to time, by the directors, provided, that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. If, for any reason, the directors shall fail to fix the time for an annual meeting, such meeting shall be held at noon on the first Tuesday in April. A special meeting shall be held on the date fixed by the directors. -- PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of New Jersey, as the directors may, from time to time, fix. Whenever the directors shall fail to fix such place, the meeting shall be 3 held at the registered office of the corporation in the State of New Jersey. -- CALL. Annual meetings may be called by the directors or by the President or by any officer instructed by the directors to call the meeting. Special meetings may be called in like manner. -- NOTICE OR ACTUAL CONSTRUCTIVE WAIVER OF NOTICE. Written notice of every meeting shall be given, stating the time, place, and purpose or purposes of the meeting. If any action is proposed to be taken which would, if taken, entitle shareholders to dissent and to receive payment for their shares, the notice shall include a statement of that purpose and to that effect. The notice of every meeting shall be given, personally or by mail, and, except as otherwise provided by the New Jersey Business Corporation Act, not less than ten days nor more than sixty days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived before or after the taking of any action, to each shareholder at his record address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage thereon prepaid, in a post office or official depository under the exclusive care and custody of the United States post office department. When a meeting is adjourned to another time or place, it shall not be necessary to give notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken and at the adjourned meeting only such business is transacted as might have been transacted at the original meeting. However, if after the adjournment the directors fix a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder on the new record date. Notice of a meeting need not be given to any shareholder who submits a signed waiver of notice before or after the meeting. The attendance of a shareholder at a meeting without protesting prior to the conclusion of the meeting the lack of notice of such meeting shall constitute a waiver of notice by him. -- VOTING LIST. The officer or agent having charge of the stock transfer books for shares of the corporation shall make and certify a complete list of the shareholders entitled to vote at the shareholders' meeting or any adjournment thereof. Any such list may consist of cards arranged alphabetically or any equipment which permits the visual display of the information required by the provisions of Section 14A:5-8 of the 4 New Jersey Business Corporation Act. Such list shall be arranged alphabetically within each class, series, if any, or group of shareholders maintained by the corporation for convenience of reference, with. the address of, and the number of shares held by, each shareholder; be produced (or available by means of a visual display) at the time and place of the meeting; be subject to the inspection of any shareholder for reasonable periods during the meeting; and be prima facie evidence as to who are the shareholders entitled to examine such list or to vote at such meeting. -- CONDUCT OF MEETING. Meetings of the shareholders shall be presided over by one of the following officers in the order of seniority and if present and acting - the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, a Vice-President, or, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the shareholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the Chairman of the meeting shall appoint a secretary of the meeting. -- PROXY REPRESENTATION. Every shareholder may authorize another person or persons to act for him by proxy in all matters in which a shareholder is entitled to participate, whether by waiving notice of or the lapse of the prescribed period of time before any meeting, voting or participating at a meeting, or expressing consent without a meeting. Every proxy must be signed by the shareholder or his agent, except that a proxy may be given by a shareholder or his agent by telegram or cable or by any means of electronic communication which results in a writing. No proxy shall be valid for more than eleven months unless a longer time is expressly provided therein. Unless it is irrevocable as provided in subsection 14A:5-19(3) of the New Jersey Business Corporation Act a proxy shall be revocable at will. The grant of a later proxy revokes any earlier proxy unless the earlier proxy is irrevocable. A proxy shall not be revoked by the death or incapacity of the shareholder, but the proxy shall continue to be in force until revoked by the personal representative or guardian of the shareholder. The presence at any meeting of any shareholder who has given a proxy does not revoke the proxy unless the shareholder files written notice of the revocation with the Secretary of the meeting prior to the voting of the proxy or votes the shares subject to the proxy by written ballot. A person named in a proxy as the attorney or agent of a 5 shareholder may, if the proxy so provides, substitute another person to act in his place, including any other person named as an attorney or agent in the same proxy. The substitution shall not be effective until an instrument effecting it is filed with the Secretary of the corporation. -- INSPECTORS - APPOINTMENT. The directors, in advance of any meeting, or of the tabulation of written consents of shareholders without a meeting may, but need not, appoint one or more inspectors to act at the meeting or any adjournment thereof or to tabulate such consents and make a written report thereof. If an inspector or inspectors to act at any meeting of shareholders are not so appointed by the directors or shall fail to qualify, if appointed, the person presiding at the shareholders' meeting may, and on the request of any shareholder entitled to vote appointed as inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding at the meeting. Each inspector appointed, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his ability. No person shall be elected a director in an election for which he has served as an inspector. The inspectors, if any, shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all shareholders. If there are three or more inspectors, the act of a majority shall govern. On request of the person presiding at the meeting or any shareholder entitled to vote thereat, the inspectors shall make a report in writing of any challenge, question, or matter determined by them. Any report made by them shall be prima facie evidence of the facts therein stated, and such report shall be filed with the minutes of the meeting. -- QUORUM. Except for meetings ordered by the Superior Court to be called and held pursuant to Sections 14A:5-2 and 14A:5-3 of the New Jersey Business Corporation Act, the holders of the shares entitled to cast at least a majority of the votes at a meeting shall constitute a quorum at the meeting of shareholders for the transaction of business. 6 The shareholders present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. Less than a quorum may adjourn. -- VOTING. Each share shall entitle the holder thereof to one vote. In the election of directors, a plurality of the votes cast shall elect, and no election need be by ballot unless a shareholder demands the same before the voting begins. Any other action shall be authorized by a majority of the votes cast except where the New Jersey Business Corporation Act prescribes a different proportion of votes. 7. SHAREHOLDER ACTION WITHOUT MEETING. Subject to any limitations prescribed by the provisions of Section 14A:5-6 of the New Jersey Business Corporation Act and upon compliance with said provisions, any action required or permitted to be taken at a meeting of shareholders by the provisions of said Act or by the Certificate of Incorporation or these By--Laws may be taken without a meeting if all of the shareholders entitled to vote thereon consent thereto in writing and (except for the annual election of directors) may also be taken by less than all of the shareholders who would have been entitled to cast the minimum number of votes which would be necessary to authorize any such action at a meeting at which all shareholders entitled to vote thereon were present and voting. Whenever any action is taken pursuant to the foregoing provisions, the written consents of the shareholders consenting thereto or the written report of inspectors appointed to tabulate such consents shall be filed with the minutes of proceedings of shareholders. ARTICLE II GOVERNING BOARD 1. FUNCTIONS, DEFINITIONS AND COMPENSATION. The business and affairs of the corporation shall be managed and conducted by or under the direction of a governing board, which is herein referred to as the "Board of Directors" or "directors" notwithstanding that the members thereof may otherwise bear the titles of trustees, managers, or governors or any other designated title, and notwithstanding that only one director legally constitutes the Board. The word "director" or "directors" likewise herein refers to a member or to members of the governing board notwithstanding the designation of a different official title or titles. The use of the phrase "entire board" herein refers to the total number of directors which the corporation would have if there were no vacancies. The 7 Board of Directors, by the affirmative vote of a majority of directors in office and irrespective of any personal interest of any of them, shall have authority to establish reasonable compensation of directors for services to the corporation as directors, officers, or otherwise. 2. QUALIFICATIONS AND NUMBER. Each director shall be at least eighteen years of age. A director need not be a shareholder, a citizen of the United States, or a resident of the State of New Jersey. The number of directors of the corporation shall be not less than one nor more than six. The first Board and subsequent Boards shall consist of two directors until changed as hereinafter provided. The directors shall have power from time to time, in the interim between annual and special meetings of the shareholders, to increase or decrease their number within the minimum and maximum number hereinbefore prescribed. 3. ELECTION AND TERM. The first Board of Directors shall hold office until the first annual meeting of shareholders and until their successors have been elected and qualified. Thereafter, directors who are elected at an annual meeting of shareholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next succeeding annual meeting of shareholders and until their successors have been elected and qualified. In the interim between annual meetings of shareholders or of special meetings of shareholders called for the election of directors, newly created directorships and any existing vacancies in the Board of Directors, including vacancies resulting from the removal of directors for cause or without cause, may be filled by the affirmative vote of the remaining directors, although less than a quorum exists or by the sole remaining director. A director may resign by written notice to the corporation. The resignation shall be effective upon receipt thereof by the corporation or at such subsequent time as shall be specified in the notice of resignation. When one or more directors shall resign from the Board of Directors effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective. 4. REMOVAL OF DIRECTORS. One or more or all the directors, of the corporation may be removed for cause or without cause by the shareholders. The Board of Directors shall have the power to remove directors for cause and to suspend 8 directors pending a final determination that cause exists for removal. 5. MEETINGS. -- TIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may Conveniently assemble. -- PLACE. Meetings shall be held at such place within or without the State of New Jersey as shall be fixed by the Board. -- CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, of the President, or of a majority of the directors in office. -- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. The notice of any meeting need not specify the business to be transacted at, or the purpose of, the meeting. Any requirement of furnishing a notice shall be waived by any director who signs a waiver of notice before or after the meeting, or who attends the meeting without protesting, prior to the conclusion of the meeting, the lack of notice to him. Notice of an adjourned meeting need not be given if the time and place are fixed at the meeting adjourning, and if the period of adjournment does not exceed ten days in any one adjournment. -- QUORUM AND ACTION. Each director shall have one vote at meetings of the Board of Directors. The participation of directors with a majority of the votes of the entire Board shall constitute a quorum for the transaction of business. Any action approved by a majority of the votes of directors present at a meeting at which a quorum is present shall be the act of the Board of Directors unless the New Jersey Business Corporation Act requires a greater proportion. Where appropriate communication facilities are reasonably available, any or all directors shall have the right to participate in all or any part of a meeting of the Board of Directors or a committee of the Board of Directors by means of conference telephone or any means 9 of communication by which all persons participating in the meeting are able to hear each other. -- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present, shall preside at all meetings. Otherwise, the President, if present, or any other director chosen by the Board, shall preside. 6. COMMITTEES. The Board of Directors, by resolution adopted by a majority of the entire Board of Directors, may appoint from among its members one or more directors to constitute an Executive Committee and one or more other committees, each of which, to the extent provided in the resolution appointing it, shall have and may exercise all of the authority of the Board of Directors with the exception of any authority the delegation of which is prohibited by Section 14A:6-9 of the New Jersey Business Corporation Act. Actions taken at a meeting of any such committee shall be reported to the Board of Directors at its next meeting following such committee meeting; except that, when the meeting of the Board is held within two days after the committee meeting, such report shall, if not made at the first meeting, be made to the Board at its second meeting following such committee meeting. Each director of a committee shall have one vote at meetings of that committee. The participation of directors with the majority of the votes of a committee shall constitute a quorum of that committee for the transaction of business. Any action approved by a majority of the votes of directors of a committee present at a meeting of that committee at which a quorum is present shall be the act of the committee unless the New Jersey Business Corporation Act requires a greater proportion. 7. WRITTEN CONSENT. Any action required or permitted to be taken pursuant to authorization voted at a meeting of the Board of Directors or any committee thereof may be taken without a meeting, if, prior or subsequent to the action, all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing and such written consents are filed with the minutes of the proceedings of the Board of Directors or committee. Such consent shall have the same effect as a unanimous vote of the Board of Directors or committee for all purposes and may be stated as such in any certificate or other document filed with the Secretary of State of the State of New Jersey. ARTICLE OFFICERS 10 The directors shall elect a President, a Secretary, and a Treasurer, and may elect a Chairman of the Board, a Vice--Chairman of the Board, one or more Vice--Presidents, Assistant Vice--Presidents, Assistant Secretaries, and Assistant Treasurers, and such other officers and agents as they shall determine. The President may but need not be a director. Any two or more offices may be held by the same person but no officer shall execute, acknowledge, or verify any instrument in more than one capacity if such instrument is required by law to be executed, acknowledged, or verified by two or more officers. Unless otherwise provided in the resolution of election, each officer shall hold office until the meeting of the Board of Directors following the next annual meeting of shareholders and until his successor has been elected and qualified. Officers shall have the powers and duties defined in the resolutions appointing them. The Board of Directors may remove any officer for cause or without cause. An officer may resign by written notice to, the corporation. The resignation shall be effective upon receipt thereof by the corporation or at such subsequent time as shall be specified in the notice of resignation. ARTICLE III REGISTERED OFFICE, BOOKS AND RECORDS The address of the initial registered office of the corporation in the State of New Jersey, and the name of the initial registered agent at said address, are set forth in the original Certificate of Incorporation of the corporation. The corporation shall keep books and records of account and minutes of the proceedings of its shareholders, Board of Directors, and the Executive Committee and other committee or committees, if any. Such books, records and minutes may be kept within or outside the State of New Jersey. The corporation shall keep at its principal office, or at the office of its transfer agent, its registered office, a record or records containing the names and addresses of all shareholders, the number, class, and series of shares held by each and the dates when they respectively became the owners of record thereof. Any of the foregoing books, minutes, or records may be in written form or in any other form capable of being converted into readable form within a reasonable time. 11 ARTICLE V CORPORATE SEAL The corporate seal shall be in such form as the Board of Directors shall prescribe. ARTICLE VI FISCAL YEAR The fiscal year of the corporation shall be fixed, and shall be subject to, change, by the Board of Directors. ARTICLE VII CONTROL OVER BY-LAWS On and after the date upon which the first Board of Directors shall have adopted the initial corporate By-Laws, which shall be deemed to have been adopted by the shareholders for the purposes of the New Jersey Business Corporation Act, the power to make, alter, and repeal the By--Laws of the corporation may be exercised by the directors or the shareholders; provided, that any By-Laws made by the Board of Directors may be altered or repealed, and new By--Laws made, by the shareholders. I HEREBY CERTIFY that the foregoing is a full, true, and correct copy of the By-Laws of OGDEN PLANT SERVICES OF NEW JERSEY, INC., a New Jersey corporation, as in effect on the date hereof. WITNESS my hand and the seal of the corporation. Dated: November 26, 1990 /s/ J.L. Effinger ---------------------------------- Secretary of OGDEN PLANT SERVICES OF NEW JERSEY, INC. (SEAL) 12 Exhibit T3B-47 WAIVER OF NOTICE OF ORGANIZATION MEETING OF DIRECTORS OF OGDEN PLANT SERVICES OF NEW JERSEY,INC. WE, THE UNDERSIGNED, being all of the directors named in the Certificate of Incorporation of the above--named corporation, do hereby severally waive notice 1] of the time and place of the organization meeting 2) of directors of said corporation, and consent that the meeting be held at Two Pennsylvania Plaza, New York, New York 10121 on the 26th day of November, 1990, at 10:00 A.M., for the purpose of adopting By-Laws, electing officers, authorizing issuance of shares, and for the transaction of such other business as may come before the meeting. Dated: November 26, 1990 /s/ Peter Allen ---------------------------- Peter Allen /s/ J.L. Effinger ---------------------------- J.L. Effinger 1] In lieu of a waiver, majority of directors must call meeting upon at least 5 days' written notice. Directors may participate in a meeting by telephone conference call or similar communications equipment where reasonably available. [ECA 14A:2-8; 14A:6--l0] 2] In lieu of a meeting, all of the directors may act in writing. [14A:6--7. 1] EX-99.T3B48 126 exhibit_t3b-48.txt Exhibit T3b-48 GEOTHERMAL POWER, INC. Bylaws Adopted December 29, 1989 ARTICLE I - OFFICES ------------------- A. The Corporation shall maintain a principal office in the Commonwealth of Virginia, County of Fairfax, and may also have an office or offices at such other place or places, either within or without the Commonwealth of Virginia, as may be designated by the Board of Directors. B. The Corporation shall maintain a registered office at 32 Loockerman Square, Suite L-100, City of Dover, County of Kent, Delaware. ARTICLE II - STOCKHOLDERS ------------------------- 1. ANNUAL A. An annual meeting of those Stockholders, for the election of Directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place on such date, and at such time as the Board of Directors shall each year fix, which date shall be within fourteen (14) months subsequent to the last annual meeting of Stockholders. B. The only items which shall be properly before the meeting shall be the (1) election of Directors and (2) items specified on the Agenda of the Annual Meeting. C. Any Stockholder wishing to place an item on the agenda for the annual meeting must advise the Secretary of the Corporation in writing at least one hundred twenty (120) calendar days in advance of the date of the Corporation's proxy statement released to Stockholders in connection with the previous year's Annual Meeting of Stockholders. Such notice to the Secretary must contain sufficient detail so as to allow its inclusion in the Corporation's proxy material. Any Stockholder submitting such a notice shall be responsible for cooperating with counsel for the Corporation to ensure that such material complies with all rules and regulations appertaining to proxy solicitation. If, in the opinion of counsel to the Corporation, said material is inappropriate or not sufficient to comply with the proxy solicitation rules and regulations, then said item may be refused by the Secretary for inclusion in the agenda. D. Unless an item is properly on the agenda, it may not be taken up for vote or discussion at the annual meeting. E. All nominations for election as Director shall be included in the proxy material accompanying the notice of the annual meeting or any special meeting. F. Nominations for Directors proposed by the Board of Directors or by the nominating committee of the Board of Directors shall be set out in the proxy materials which shall accompany the notice of annual meeting or any special meeting. G. There shall be no nominations allowed from the floor of any annual or special meeting for individuals to fill vacancies on the Board of Directors. H. It shall require a petition signed by Stockholders representing at least ten percent (10%) of the total issued and outstanding stock of the company to place a name in nomination in addition to those proposed by the Board of Directors or the nominating committee of the Board of Directors for any annual or special meeting at which Directors are to be elected. Said petition along with appropriate biographical information of the individual must be submitted to the Secretary of the Corporation at least one hundred twenty (120) calendar days in advance of the date of the Corporation's proxy statement released to Stockholders in connection with previous year's Annual Meeting of Stockholders. In connection with any special meeting of Stockholders the said petition and information must be so received no later than One Hundred Twenty (120) calendar days prior to the mailing date established by the Board for the mailing of proxy materials for such special meeting. The nominating committee shall take such additional steps as are necessary to establish the qualifications of the proposed individual. 2. SPECIAL MEETING Special meetings of the Stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President, by the Board of Directors, or by the holders of not less than ten percent (10%) of the outstanding voting stock of the Corporation. The special meeting will then be held on a date established by the President not more than ninety (90) days after the Secretary has notified the Board of Directors. For all special meetings, the President or the Board of Directors shall have the power to determine (within the limitations permitted by law) the form, content, means of communication and timing of notice of such meeting. 3. PLACE OF MEETING The Directors may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for meeting or any annual meeting or for any special meeting. A waiver of notice signed by all Stockholders entitled to vote at a meeting may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for holding such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the Corporation. 4. NOTICE OF MEETING Written or printed notice stating the place, day and hour of the meeting, and accompanied by an agenda of the meeting shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary or the Officer or persons calling the meeting, to each Stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the Stockholder at his or her address as it appears on the stock transfer books of the Corporation, with postage thereon prepaid; provided that written notice of a meeting shall be delivered, as set forth above, not less than twenty (20) days before the date of such meeting if action is to be taken on a plan contemplating the merger or consolidation of the Corporation with another Corporation. 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE A. For the purpose of determining the Stockholders entitled to notice of or to vote at any meeting of Stockholders or any adjournment thereof, or in order to make a determination of Stockholders for any other proper purpose, except for the payment of dividends, the Board of Directors of the Corporation may provide that the stock transfer books shall be closed for stated period but not to exceed, in any case, sixty (60) days. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for, any such determination of Stockholders, such date in any case to be not more than sixty (60) days prior to the date on which the particular action, requiring such determination of Stockholders, is to be taken. If the stock transfer books are not closed and no record date is fixed for the termination of Stockholders entitled to notice of or to vote at a meeting Of Stockholders, the date on which notice of the meeting is mailed shall be the record date for such determination of Stockholders. When a determination of Stockholders entitled to vote at any meeting of Stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof. B. For the purpose of determining the Stockholders entitled to receive payment of any dividend, the Board of Directors shall fix in advance a date as the record date for such determination of Stockholders, such date in any case to be not more than sixty (60) days prior to the date on which the particular action, requiring such determination of Stockholders, is to be taken. If no record date is fixed for the determination of Stockholders entitled to receive payment of a dividend, the date on which the resolution of the Board of Directors declaring such dividend is adopted shall be the record date for such determination of Stockholders. 6. VOTING LISTS The Office or Agent having charge of the stock transfer books for shares of the Corporation shall make, at least ten (10) days before each meeting of Stockholders, a complete list of the Stockholders entitled to vote at such meetings, or any adjournment thereof, arranged in alphabetical order, with the addresses of and the number of shares held by each, which list, for a period of ten (10) days prior to such meeting, shall be kept on file at the principal office of the Corporation and shall be subject to inspection at any time during usual business hours by any period who shall have been a Stockholder or record for at least six (6) months immediately preceding his or her request to inspect the list or who shall be the holder of record of a least five" percent (5%) of all the outstanding shares of the Corporation. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any Stockholder during the whole time of the meeting. The original stock transfer book shall be prima facie evidence as to who are the Stockholders entitled to examine such list or transfer books or to vote at the meeting of Stockholders. 7. QUORUM At any meeting of Stockholders, thirty-three and one-half percent (33-1/2%) of the outstanding shares of the Corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of Stockholders. If less than said number of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time and notice shall be given to all Shareholders. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The Stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough Stockholders to leave less than a quorum. 8. PROXIES At all meetings of Stockholders, a Stockholder may vote by proxy executed in writing by the Stockholder or by his or her duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting. The Board of Directors, in advance of any annual or special, meeting of the shareholders, may prescribe additional regulations concerning the manner of execution and filing of proxies and the validation of the same, which are intended to be voted at any such meeting. 9. VOTING A. General. Each Stockholder entitled to vote in accordance with the terms and provisions of the Certificate of Incorporation and these Bylaws shall be entitled to one (1) vote, in person or by proxy, for each share of stock entitled to vote held by such Stockholder but Class B Stockholders may only vote for the election of one Director pursuant to the Corporation's Articles of Incorporation. Upon the demand of any Stockholder, the vote for Directors and upon any questions before the meeting shall be by ballot. All elections for Directors shall be decided by majority vote except as otherwise provided by Certificate of Incorporation or the laws of this State. B. Voting by Pledgee, Trustee, Fiduciary. Shares standing in the name of any persons as pledgee, trustee, or other fiduciary may be voted and all the rights incident thereto may be exercised only the pledgee, trustee, or other fiduciary, in person or by proxy, and without proof of authority. However, when a trust company has caused shares to be registered in the name of one or more nominee of the trust company, such shares may be voted and all rights incident thereto may be exercised by such nominee or nominees without proof of authority. C. Voting Shares in Names of Two or More Persons. Shares standing in the names of two or more persons shall be voted or represented in accordance with the vote or consent of the majority of the persons in whose names the shares stand. If only one such person is present or by proxy, he may vote all the shares, and all the shares standing in the names of such persons are represented for the, purpose of determining a quorum. This Bylaw applies to the voting of shares by two or more administrators, executors, trustees, or other fiduciaries, unless the instrument or order of court appointing them otherwise directs. 10. ORDER OF BUSINESS The order business at all meetings of the Stockholders shall be as follows: 1. Roll Call; 2. Proof of notice of meeting or waiver of notice; 3. Establishment of a quorum; 4. Reading of minutes of preceding meeting; 5. Election of Directors; 6. Agenda items; and 7. Adjournment. ARTICLE III - BOARD OF DIRECTORS 1. GENERAL POWER The business and affairs of the Corporation shall be managed by its Board of Directors. The Directors shall in all cases act as a Board. 2. NUMBER, TENURE AND QUALIFICATIONS The number of Directors of the Corporation shall be not less than three (3) or more than fifteen (15). Each Director shall hold office until the next annual meeting of Stockholders, at which the class of Directors of which he is, a member is to be elected, and until his or her successor shall have been elected and qualified, the actual number of Directors shall be established by the Board. 3. REGULAR MEETINGS A regular meeting of the Directors shall be held without other notice than this Bylaw immediately after, and at the same place as, the annual meeting of the Stockholders. The Directors may provide, by resolution, the time and place for the holding of additional regular meetings without other notice than such resolution. 4. SPECIAL MEETINGS Special meetings of the Directors may be called by or at the request of the President or any two (2) Directors. The person or persons authorized to call special meetings of the Directors may fix the place for holding any special meeting of the Directors called by them. 5. NOTICE Notice of any special meeting shall be given at least two (2) days prior thereto by written notice delivered personally, or by telegram or mailed to each Director at his or her business address. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. The attendance of a Director at a meeting shall constitute a waiver of notice of such meeting, except where a Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 6. QUORUM At any meeting of the Directors a majority of those elected and currently serving shall constitute a quorum for the transaction of business, but if less than said number is present at a meeting a majority of the Directors present may adjourn the meeting from time to time without further notice. 7. MANNER OF ACTING The act of the majority of the Directors present at a meeting at which a quorum is present shall be the act of the Directors. 8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES Newly created Directorships resulting from an increase in the number of Directors and vacancies occurring in the Board may be filled by a vote of a majority of the Directors then in office, although less than a quorum exists. A Director elected to fill a vacancy caused by resignation, death or removal, shall be elected to hold office for the unexpired term of his or her predecessor. 9. REMOVAL OF DIRECTORS Any of all of the Directors may be removed for cause by vote of the Stockholders or by action of the Board. Directors may be removed without cause only by vote of the Stockholders. 10. RESIGNATION A Director may resign at any time by giving written notice to the Board, the President or the Secretary of the Corporation. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the Board, and the acceptance of the resignation shall not be necessary to make it effective. 11. COMPENSATION The Directors may be paid their expenses of attendance at each meeting of the Board of Directors or Committee thereof and may be paid a fixed sum for attendance at each such meeting or a stated salary or fee as a Director. No such payment shall preclude any Director from serving the Corporation in any other capacity and receiving compensation thereof. 12. PRESUMPTION OF ASSENT A Director of the Corporation who is present at a meeting of the Directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his or her dissent shall be entered in the minutes of the meeting or unless he shall file his or her written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favor of such action. 13. COMMITTEES A. Executive Committee. The Board of Directors may appoint from its members an Executive Committee of not less than two (2) nor more than seven (7) members, one of whom shall be the President, and shall designate one of such members as Chairman. The Board may also designate one or more of its members as alternates to serve as a member or members of the Executive Committee in the absence of a regular member of members. The Board of Directors reserves to itself alone the power to approve an amendment to the Articles of Incorporation; approve a plan of merger or consolidation; approve a plan of exchange under which the Corporation would be acquired; approve the sale, lease or exchange or the mortgage or pledge for consideration other than money of all or substantially all of the property and assets of the Corporation other than in the regular course of business; approve the voluntary dissolution of the Company or revocation of voluntary dissolution proceedings. Subject to the foregoing limitations, the Executive Committee shall possess and exercise all other power of the Board of Directors during the intervals between meetings. B. Other Committees. The Board of Directors may appoint such other Committees from among its members as the Board desires. All such Committees shall serve at the pleasure of the Board and shall have such duties, powers and responsibilities as set forth in the resolution establishing same. 14. ALTERNATIVE METHODS OF CONDUCTING BUSINESS A. Action by Consent of Board Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any Committee thereof may be taken without a meeting if all members of the Board or Committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or Committee. B. Participation Through Usage of Teleconferencing Equipment. Members of the Board of Directors or any Committee designated thereby may participate in a meeting of such Board or Committee by means of a conference telephone or television or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. When such meeting is conducted by means of, a conference telephone, television or similar communications equipment, a written record shall be made of the action(s) taken at such meeting. ARTICLE IV - OFFICERS 1. NUMBER The Officers of the Corporation shall be a President, one or more Executive Vice Presidents, one or more Vice Presidents, a Secretary and a Treasurer, each of whom shall be elected by the Directors. Such other Officers and Assistant Officers as may be deemed necessary may be elected or appointed by the Directors. 2. ELECTION AND TERM OF OFFICE The Officers of the Corporation to be elected by the Directors shall be elected annually at the first meeting of the Board of Directors held after each annual meeting of the Stockholders. Each Officer shall hold office until his or her successor shall have been duly elected and shall have qualified or until his or her death or until he shall resign or shall have been removed in the manner hereinafter provided. 3. REMOVAL Any Officer or Agent elected or appointed by the Directors may be removed by the Directors whenever in their judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. 4. VACANCIES A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filed by the Directors for the unexpired portion of the term. 5. CHAIRMAN The Chairman of the Board of Directors shall be the Chief Executive Officer of the Corporation and, subject to the Directors, shall in general supervise and control all of the business and affairs of the, Corporation. He or she shall, when present, preside at all meetings of the Stockholders and of the Directors. He or she may sign with the Secretary or any other proper Officer of the Corporation thereunto authorized by the Directors, certificates for shares of the Corporation, any deeds, mortgages, bonds, contracts, or other instruments which the Directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Directors or by these Bylaws to some other Officer or Agent of the Corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of Chairman and such other duties as may be prescribed by the Directors from time to time. The Chairman shall have the authority to remove any Corporate Officer from office when, in his or her sole discretion, the removal would be in the best interests of the Corporation. 6. PRESIDENT The President shall be the Chief Operating Officer of the Corporation and, subject to the Directors and the Chief Executive Officer, shall in general supervise and control all of the business operations of the Corporation. He or she may sign with the Secretary or any other proper Officer of the Corporation there-unto authorized by the Directors, certificates for shares of the Corporation, any deeds, mortgages, bonds, contracts, or other instruments which the Directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the Directors or by these Bylaws to some other Officer or Agent of the Corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the Directors from time to time. 7. EXECUTIVE VICE PRESIDENT In the absence of the President or in the event of his death, inability or refusal to act, an Executive Vice President shall perform the duties of the President, and when so acting, shall have all the power of and be subject to all the restrictions upon the President. The Executive Vice President shall perform such other duties as from time to time may be assigned to him or her by the President or Directors. 8. VICE PRESIDENT The Vice President(s) shall be elected by the Board of Directors and serve at its request. The Vice President(s) shall perform such duties as shall be designated by the Board of Directors or the President and shall report to the President unless he or she designates another Officer or Committee to receive said reports. 9. SECRETARY The Secretary shall keep the minutes of the Stockholders' and of the Directors' meetings in one or more books provided for that purpose, see that all notices are duly given in accordance with the provisions of these Bylaws or as required by custodian of the Corporate Records and of the Seal of the Corporation and keep a register of the post office address of each Stockholder which shall be furnished to the Secretary by such Stockholder, have general charge of the stock transfer books of the Corporation and in general perform all duties incident to the office of the Secretary and such other duties as from time to time may be assigned to him or her by the President or by the Directors. One or more assistant secretaries may be appointed by the Board of Directors to execute duties incident to the Office of Secretary in the absence of the Secretary. 10. TREASURER If required by the Directors, the Treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with surety or sureties as the Directors shall determine. He or she shall have charge and custody of and be responsible for all funds and securities of the Corporation; receive and give receipts for monies due and payable to the Corporation from any source whatsoever, and deposit all such monies in the name of the Corporation in such bank, trust companies or other depositories as shall be selected in accordance with these Bylaws and in general perform all of the duties incident to the office of the Treasurer and such other duties as from time to time may be assigned to him or her by the President or by the Directors. 11. SALARIES The salaries of the Officers shall be fixed from time to time by the Directors and no Officer shall be prevented from receiving such salary by reason of the fact that he or she is also a Director of the Corporation. ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS 1. CONTRACTS The Directors may authorize any Officer or Officers, Agent or Agents to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances. 2. LOANS No loans shall be contracted On behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Directors or in accordance with policy adopted from time-to-time or authority delegated by the Board of Directors. 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such Officer or Officers, Agent or Agents of the Corporation and in such manner as shall from time to time be determined by resolution of the Directors. 4. DEPOSITS All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Directors may select. 5. EXERCISE OF RIGHTS AS STOCKHOLDERS Unless otherwise ordered by the Board of Directors, the Chairman of the Board, President or a Vice President thereunto duly authorized on behalf of the Company to attend and to vote at any meeting of Stockholders of any corporation in which this Company may hold stock and may exercise on behalf of this company any and all of the rights and powers incident to the ownership of such stock at any such meeting, and shall have power and authority to execute and deliver proxies and consents on behalf of this Company of the rights and powers incident to the ownership of such stock. The Board of Directors, from time to time, may confer like powers upon any other person or persons. 6. FACSIMILE SIGNATURES Facsimile signatures of any Officer or Officers of the Corporation may be used whenever and as authorized by the Board of Directors or a Committee thereof. ARTICLE VI - CERTIFICATES FOR SHARES AND TRANSFER 1. CERTIFICATES FOR SHARES Certificates representing shares of the Corporation shall be in such form as shall be determined by the Directors. Such certificates shall be signed by the President and by the Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the Stockholders, the number of shares and date of issue shall be entered on the stock transfer books of the Corporation. All certificates surrendered to the Corporation for transfer shall be cancelled and no new certificates shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate a new one may be issued therefore upon such terms and indemnity to the corporation as the Directors may prescribe. 2. TRANSFER OF SHARES A. Upon surrender to the Corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, and cancel the old certificate; every such transfer shall be entered on the transfer book of the Corporation which shall be kept at its principal office or at the office of a transfer agent appointed by the Corporation. B. The Corporation shall be entitled to treat the holder of record of any shares as the holder in fact thereof, and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of this state. ARTICLE VII - FISCAL YEAR The Fiscal Year of the Corporation shall begin on the first day of January in each year. ARTICLE VIII - DIVIDENDS The Directors may from time to time declare, and the Corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law. ARTICLE IX - CORPORATE RECORDS 1. INSPECTION OF RECORDS BY SHAREHOLDERS The share register, or duplicate share register, shall be open to inspection by a Shareholder upon proper written request for a purpose reasonably related to his or her interests as a Shareholder. Such inspection by a Shareholder or holder of a voting trust certificate may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. Shareholders acting pursuant to this provision shall request inspection by writing to the President or Secretary of the Corporation, specifying the purpose for such inspection under oath, and sending a copy of such request to the Corporation's General Counsel. 2. INSPECTION OF RECORDS BY DIRECTORS Every Director shall have the right at any reasonable time to inspect all books, records, documents of every kind, and the physical properties of the Corporation, and also of its subsidiary corporations, domestic or foreign. Such a right must be reasonably related, as determined by a majority of the Board of Directors then in office, to the Director's position and responsibilities as a Director of the Corporation. Such inspection by a Director may be made in person or by agent, or attorney, and the right of inspection includes the right to make extracts. ARTICLE X - SEAL The Directors shall provide a corporate seal which shall be circular in form and shall have inscribed thereon the name of the Corporation, the state of incorporation, and the year of incorporation. ARTICLE XI - WAIVER OF NOTICE Unless otherwise provided by law, whenever any notice is required to be given to any Stockholder or Director of the Corporation under the provisions of these Bylaws or under the provisions of the Certificate of Incorporation, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XII - AMENDMENTS A. These Bylaws may be altered, amended or repealed, and new Bylaws may be adopted by a vote of the Stockholders representing a majority of all the shares issued and outstanding, at any annual Stockholders meeting or at any special Stockholders' meeting when the proposed amendment has been set out in the notice of such meeting or by written consent signed by all Stockholders of record. B. These Bylaws may be altered, amended or repealed and new Bylaws adopted without Shareholder approval by the affirmative vote of a majority of the Board of Directors, provided, however, that the Board shall not have the power to alter, amend or repeal any Bylaw adopted by the Shareholders pursuant to paragraph A above of said , Bylaws, if such Bylaw, when adopted, contains a clause therein that it may not be altered, amended, or repealed by the Board of Directors. ARTICLE XIII - INDEMNIFICATION 1. Action, Etc. Other Than by or in the Right of the Corporation. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding or investigation, whether civil, criminal or administrative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, that he or she had reasonable cause to believe that his or her conduct was unlawful. 2. Actions, Etc., By or in the Right of the Corporation. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his or her duty to the Corporation unless and only to the extent the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. 3. Determination of Indemnification. Any indemnification under Sections 1 or 2 (unless ordered by a court) shall be made by the Corporation unless a determination is reasonably and promptly made (i) by the board by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Directors so Directors, by independent legal counsel in written opinion, or (iii) by the Stockholders, that such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe that his or her conduct was unlawful. 4. Indemnification Against Expenses of Successful Party. Notwithstanding the other provisions of this Article, to the extent that an agent of the Corporation has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any proceeding or in defense of any claim, issue or matter therein, such agent shall be indemnified against all expenses incurred in connection therewith. 5. Advance of Expenses. Except as limited by Section 6 of this Article, expenses incurred in any proceeding shall be paid by the Corporation in advance of the final disposition of such proceeding, if the agent shall undertake to repay such amount in the event that it is ultimately determined, as provided herein, that such person is not entitled to indemnification. Notwithstanding the foregoing, no advance shall be made by the Corporation if a determination is reasonably and promptly made by the Board of Directors by a majority vote of a quorum of disinterested Directors, or (if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested Directors so directs) by independent legal counsel in a written opinion, that, based upon the facts known to the Board or counsel at the time such determination is made, such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his or her conduct was unlawful. In no event shall any advance be made in instances where the Board or independent legal counsel reasonably determines that such person deliberately breached his or her duty to the Corporation or its shareholders. 6. Right of Agent to Indemnification Upon Application; Procedure Upon Application. Any indemnification under Sections 2, 3, and 4, or advance under Section 5 of this Article, shall be made promptly, and in any event within ninety days, upon the written request of the agent, unless with respect to applications under Sections 2, 3, or 5, a determination is reasonably and promptly made by the Board of Directors by a majority vote or a quorum of disinterested Directors that such agent acted in a manner set forth in such Sections as to justify the Corporation's not indemnifying or making an advance to the agent. In the event no quorum of disinterested Directors is obtainable, the Board of Directors shall promptly direct that independent legal counsel shall decide whether the agent acted in the manner set forth in such Sections as to justify the Corporation's not indemnifying or making an advance to the agent. The right to indemnification or advances as granted by this Article shall be enforceable by the agent in any court of competent jurisdiction, if the Board of independent legal counsel denies the claim, in whole or in part, or if no disposition of such claim is made within ninety days. The agent's expenses incurred in connection with successfully establishing his or her right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the corporation. 7. Other Rights and Remedies. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaws, agreement, vote of Stockholders or disinterested Directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a Director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. All rights to indemnification under this Article shall be deemed to be provided by a contract between the Corporation and the Director, officer, employee or agent who serves in such capacity at any time while these bylaws and other relevant provisions of the general corporation law and other applicable law, if any, are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing. 8. Insurance. Upon resolution passed by the Board, the Corporation may purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of this Article. 9. Constituent Corporations. For the purposes of this Article, references to "the Corporation" include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who is or was a Director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would if he had served the resulting or surviving corporation in the same capacity. 10. Other Enterprises, Fines, and Serving at Corporation's Request. For the purposes of this Article, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; any person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article. 11. Savings Clause. If this Article or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each agent of the Corporation as to expenses (including attorneys' fees), judgments, fines and amounts paid in a settlement with respect to any action, suit or proceeding, whether civil; criminal, administrative or investigative, including a grand jury proceeding and an action by the Corporation, to the full extent permitted by any applicable portion of this Article that shall have not been invalidated or by any other applicable law. EX-99.T3B49 127 exhibit_t3b-49.txt Exhibit T3B-49 OGDEN POWER PACIFIC, INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be 2730 Gateway Oaks Drive, Suite 100, Sacramento, California 95833. Section 2. The corporation may also have offices at such other places both within and without the State of California as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of California, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 2 Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder or record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall he voted on after three years from its date, unless the proxy provides for a longer period. 3 Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall not be less than three nor more than 6. The first board shall consist of three (3) directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or 4 any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of California. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. 5 Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons 6 participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to 7 adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the 8 time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. The board of directors may also choose additional vice presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. 9 THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose 10 supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as 11 shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertified stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations. preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. 12 Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent 13 uncertificated shares or certificated shares shall he made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on the books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of California. 14 ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall coincide with the calendar year unless otherwise fixed by resolution of the board of directors. 15 SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, California". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director, officer, employee or agent of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer, employee or agent against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any and all expenses (including attorneys' fees) incurred by any such person in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses if it shall ultimately be determined by a final judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events 16 occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent Corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation. ARTICLE VII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 17 EX-99.T3B50 128 exhibit_t3b-50.txt Exhibit T3B-50 BYLAWS of PACIFIC POWER PLANT OPERATIONS ARTICLE I Principal Executive Office The principal executive office of the corporation shall be located at 6055 East Washington Blvd., Commerce, California 90040, or such other place as may be designated from time to time by the board of directors. ARTICLE II Meetings of Shareholders Section 1. Annual Meetings. Unless otherwise determined by the board of directors, the regular annual meeting of shareholders of the corporation shall be held on the 4th Tuesday of March of each year, at the hour of 9:30 a.m.; provided that if the day is a legal holiday, then at the same time on the next day which is not a legal holiday. At the regular annual meeting of shareholders, directors shall be elected and any other business may be transacted which is within the powers of shareholders. Section 2. Special Meetings. Special meetings of shareholders may be called by the board of directors, or by the chairman of the board, if there be such an officer, or by the president or by the holders of shares entitled to cast not less than ten percent (10%) of the votes at such meeting. Section 3. Place of Meetings. Each annual or special meeting of shareholders shall be held at such location as may be determined by the board of directors, or if no determination is made at such place as may be determined by the chief executive officer or by any other officer 1 authorized by the board of directors or by the chief executive officer to make such determination, and if no location is so determined at the principal executive office of the corporation. Section 4. Notice of Meetings. Notice of each annual or special meeting of shareholders shall be given as required by law and, subject to the requirements of applicable law, shall contain such information, and shall be given to such persons at such time and in such manner as the board of directors shall determine or, if no determination is made, as the chief executive officer or any other officer so authorized by the board of directors or by the chief executive officer shall determine. Section 5. Waiver of Notice. The transactions of any meeting of shareholders, however called and noticed, shall be as valid as though in a meeting duly held after regular call and notice if a quorum be present and before or after the meeting each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. Section 6. Conduct of Meetings. Subject to the requirements of applicable law, all annual and special meetings of shareholders shall be conducted in accordance with such rules and procedures as the board of directors may determine and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any annual or special meeting of shareholders shall be designated by the board of directors and, in the absence of any such designation, shall be the chief executive officer of the corporation or other person designated by the chief executive officer. Section 7. Action Without Meeting. Except as may be prohibited by the California General Corporation Law or by the Articles of Incorporation or by these bylaws, any action which may be taken at any annual or special meeting of shareholders may be taken without a 2 meeting and without prior notice if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If any such action is taken without a meeting, notice shall be given as required by law. ARTICLE III Board of Directors Section 1. Number of Directors. The authorized number of directors of the corporation shall not be less than three (3) nor more than seven (7) until changed by a duly adopted bylaw amending this Section 1. The number of directors shall be fixed at three (3) until changed, within the limits specified above, by a duly adopted bylaw amending this Section 1 or by the board of directors. Section 2. Quorum. A majority of the fixed number of directors shall constitute a quorum. ARTICLE IV Meetings of Directors Section 1. Regular Meetings. Immediately following each annual meeting of shareholders, there shall be a regular meeting of the board of directors of the corporation for the purposes of organization, election of officers and the transaction of other business. Notice of regular meetings of the board of directors is not required. Section 2. Special Meetings. Special meetings of the board of directors for any purpose may be called at any time by the chairman of the board, if there be such an officer, or by the president or by any vice president or by any two directors. 3 Notice of the time and place of special meetings shall be given personally to each director, or communicated by telephone, or sent to each director by mail, or other form of written communication. In case of notice by mail, telegraph or other form of written communication (i) it shall be deposited in the United States mail or company mail or delivered to the telegraph company in the city in which the principal executive office of the corporation is located at least twenty-four (24) hours prior to the time of the meeting or (ii) delivered to the director's regular business office during normal business hours at least four (4) hours prior to the time of the meeting. In case notice is given personally or by telephone, it shall be given at least four (4) hours prior to the time of the meeting. Such mailing, telegraphing, delivering or giving of personal notice shall be legal notice to the directors. Section 3. Place of Meetings. Each regular or special meeting of the board of directors shall be held at the location determined as follows: The board of directors may designate any place, within or without the state of California, for the holding of any meeting; if no such designation is made, at such location as is designated by the person or persons calling the meeting; and if neither of such designations is made, at the principal executive office of the corporation. Section 4. Conduct Meetings. Subject to the requirements of applicable law, all regular and special meetings of the board of directors shall be conducted in accordance with such rules and procedures as the board of directors may approve and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any regular or special meeting shall be the chief executive officer or any other person that the board of directors may designate. 4 Section 5. Conference Telephones. Members of the board of directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. Participation in a meeting pursuant to this Section 5 constitutes presence in person at such meeting. Section 6. Action Without Meeting. Any action required or permitted to be taken by the board of directors may be taken without a meeting if all members of the board of, directors shall individually or collectively consent in writing to such action. Such written consent shall be filed with the minutes of the proceedings of the board of directors. Such action by written consent shall have the same force and effect as a unanimous vote of directors. ARTICLE V Officers Section 1. Officers. The officers of the corporation shall be a president, a vice president, a secretary and a treasurer. The corporation may have, at the discretion of the board of directors, a chairman of the board, additional vice presidents, assistant secretaries, assistant treasurers, and such other officers as may be necessary or advisable for the conduct of the business. One person may hold two or more offices. Section 2. Election. The officers shall be elected by the board of directors and shall hold office at the pleasure of the board of directors. In the absence of further action by the board of directors, all officers shall hold office until the election, qualification and acceptance of office by their respective successors. 5 ARTICLE VI Chairman of the Board The chairman of the board, if there be such an officer, shall be a member of the board of directors and shall exercise and perform such powers and duties as may be assigned to such person by the board of directors. ARTICLE VII President Subject to supervisory powers as may be given by the board of directors to the chairman of the board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall have all of the powers and shall perform all of the duties which are inherent in the office of the president. The president shall have general charge and supervision of the corporation' s business and all of its officers, agents and employees. The president shall have the additional powers and perform such further duties as may be prescribed by the board of directors. ARTICLE VIII Vice Presidents In the president's absence, disability or refusal to act, the vice presidents in order of their rank shall perform all of the duties of the president and when so acting shall have all the president's powers and be subject to all the restrictions upon the president. The vice presidents shall have other powers and perform such additional duties as may be prescribed by the board of directors or by the chief executive officer. ARTICLE IX Secretary Section 1. Duties. The secretary shall keep at the principal executive office, a book of minutes of all meetings of directors and of shareholders, with the time and place of holding, 6 whether regular or special, and if special, how authorized and the notice given, the names of those present at meetings of directors, the number of shares represented in person or by written proxy at meetings of shareholders and the proceedings. The secretary shall keep at the principal executive office a share register showing the names of the shareholders and their addresses, the number of shares and classes of shares held by each, the number and date of certificate issued for the shares and the number and date of cancellation of every certificate surrendered. The secretary shall give notice of all the meetings of the shareholders and of the board of directors required by the bylaws or by law, and shall keep the seal of the corporation in safe custody and shall have the other powers and perform additional duties as may be prescribed by the board of directors, or by the chief executive officer. Section 2. Agent for Service of Process. Unless the board of directors shall designate another person to be the agent for service of process in California, the secretary shall be the agent for service of process. Section 3. Assistant Secretaries. It shall be the duty of the assistant secretaries to assist the secretary in the performance of the secretary's duties. In the absence or disability of the secretary, the secretary's duties may be performed by an assistant secretary. ARTICLE X Treasurer and Chief Financial Officer Section 1. Chief Financial Officer. Unless the board of directors shall designate another officer to be the chief financial, officer, the treasurer shall be the chief financial officer. Section 2. Duties. The treasurer shall have custody and account for all funds of the corporation which may be deposited with the treasurer or in banks or other places of deposit. The treasurer shall disburse funds which have been duly approved for disbursement. The treasurer shall sign notes, bonds or other evidences of indebtedness for the corporation as the 7 board of directors may authorize. The treasurer shall perform other duties which may be assigned by the board of directors or by the chief executive officer. Section 3. Assistant Treasurers. It shall be the duty of the assistant treasurers to help the treasurer in the performance of the treasurer's duties. In the treasurer's absence or disability, the treasurer's duties may be performed by an assistant treasurer. ARTICLE XI Indemnification of Agents of the Corporation; Purchase of Liability Insurance Section 1. For the purpose of this Article, "agent" means any person who is or was a director, officer, employee or other agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation; "proceeding" means any threatened pending or completed action or proceeding, whether civil, criminal, administrative, or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 4 or paragraph (c) of Section 5 of this Article. Section 2. The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed proceeding (other than an action by or in the right of the corporation to procure a judgment in its favor) by reason of the fact that such person is or was an agent of the corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to 8 be in the best interests of the corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the corporation or that the person had reasonable cause to believe that the person's conduct was unlawful. Section 3. The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was an reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith, in a manner such person believed to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. No indemnification shall be made under this Section 3: (a) In respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation in the performance of such person's duty to the corporation, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for the expenses which such, court shall determine; (b) Of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval; or 9 (c) Of expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval. Section 4. To the extent that an agent of the corporation has been successful on the merits in defense of any proceeding referred to in Section 2 or 3 or in defense of any claim, issue or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith. Section 5. Except as provided in Section 4, any indemnification under this Article shall be made by the corporation only if authorized in the specific case, upon a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in Section 2 or 3, by: (a) A majority vote of a quorum consisting of directors who are not parties to such proceeding; (b) Approval or ratification by the affirmative vote of a majority of the shares of the corporation entitled to vote represented at a duly held meeting at which a quorum is present or by the written consent of holders of a majority of the outstanding shares entitled to vote, and by the affirmative vote or written consent of such greater proportion of the shares of any class or series as may be provided in the Articles of Incorporation for such action. For purposes of determining the required quorum of any meeting of shareholders called to approve or ratify indemnification of an agent and the vote or written consent required therefor, the shares owned by the person to be indemnified shall not be considered outstanding and shall not be entitled to vote thereon; or (c) The court in which such proceeding is or was pending, upon application made by the corporation or the agent or the attorney or other person rendering services in connection with 10 the defense, whether or not such application by the agent, attorney, or other person is opposed by the corporation. Section 6. Expenses incurred in defending any proceeding may be advanced by the corporation prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount unless it shall be determined ultimately that the agent is entitled to be indemnified as authorized in this Article. Section 7. This Article shall create a right of indemnification for each person referred to in this Article, whether or riot the proceeding to which the indemnification relates arose in whole or in part prior to adoption of this Article, and in the event of the death of such agent, whether before or after initiation of such proceeding, such right shall extend to such person a legal representatives. This Article does not apply to any proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in such person's capacity as such, even though such person may also be an agent of the corporation as defined in Section 1. Nothing contained in this Article Shall limit any right to indemnification to which such a trustee, investment manager or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law other than this Article. In addition to the maximum extent permitted by applicable law, the right of indemnification hereby given shall not be exclusive of or otherwise affect any other rights such agent may have to indemnification whether by law or under any contract, insurance policy or otherwise. Section 8. No indemnification or advance shall be made under this Article, except as provided in Section 4 or paragraph (c) of Section 5, in any circumstance where it appears: (a) That it would be inconsistent with a provision of the Articles of Incorporation, these Bylaws, a resolution of the shareholders or an agreement in effect at the time of the accrual 11 of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement. Section 9. Upon determination by the board of directors, the corporation may purchase and maintain insurance on behalf of any agent of the corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not the corporation would have the power to indemnify the agent against such liability under the provisions of this Article. ARTICLE XII Annual Reports The annual report to shareholders prescribed in Section 1501 of the California General Corporation Law is waived. ARTICLE XIII Amendments to Bylaws Section 1. Shareholder Vote. New bylaws may be of shareholders exercising a majority of the voting power represented by the outstanding shares, or by the written consent of shareholders exercising such voting powers. Section 2. Board of Directors Vote. Subject to the right of shareholders as provided in Section 1 of this Article XIII, bylaws may be adopted, amended or repealed by a majority of the board of directors, except a bylaw or amendment changing the authorized number of directors, a bylaw or amendment changing the power of the board of directors to fill, a vacancy or vacancies occurring on the board of directors by reason of the removal of a director or directors, and 12 another bylaw or amendment which by law or by the articles of incorporation or by these bylaws may be adopted only by the shareholders. 13 EX-99.T3B51 129 exhibit_t3b-51.txt Exhibit T3B-51 OGDEN PROJECTS OF HAWAII, INC. * * * * * B Y - L A W S * * * * * ARTICLE I OFFICES Section 1. The registered office shall be located in Honolulu, Hawaii. Section 2. The corporation may also have offices at such other places within or without the State of Hawaii as the board of directors may from time to time appoint or the business of the corporation may require. ARTICLE II MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held in Fairfield, New Jersey, at such place as may be fixed from tine to time by the board of directors. Exhibit T3B-51 Section 2. Annual meetings of shareholders shall be held on such date and at such time as may be determined by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote, a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice stating the place, day and hour of the meeting shall be delivered not less than ten nor more than seventy days before the date of the meeting, either personally or by mail, by or at the direction of the president, the secretary or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Hawaii as shall be stated in the notice of the meeting or in a duly executed notice of waiver thereof. Section 2. Special meetings of the shareholders, for any purpose or purposes, may be called by the president, the Exhibit T3B-51 board of directors, or the holders of not less than ten percent of all the shares entitled to vote at the meeting. Section 3. Written or printed notice of a special meeting stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than seventy days before the date of the meeting, either personally or by mail, by or at the direction of the president, the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. ARTICLE IV QUORUM AND VOTING OF SHARES Section 1. A majority of the shareholders holding shares entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of shareholders, for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented, at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have the power to adjourn the meeting, from time Exhibit T3B-51 to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares represented at the meeting and entitled to vote on the subject matter shall be the act of the shareholders, unless the vote of a greater number of shares is required by law or the articles of incorporation. Section 3. Each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders, except as otherwise provided in the articles of incorporation. A shareholder may vote in person or by proxy executed in writing by the shareholder or by a duly authorized attorney-in--fact. Section 4. Any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. Exhibit T3B-51 ARTICLE V DIRECTORS Section 1. The number of directors shall be three. No less than one member of every board of directors shall at all times be a resident of the State of Hawaii. Directors need not be shareholders. The directors, other than the first board of directors, shall be elected at the annual meeting of shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Any vacancy occurring on the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors. Any directorship filled by reason of an increase in the number of directors may be filled by the board of directors for a term of office continuing only until the next election of directors by the shareholders. Section 3. The business and affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles Exhibit T3B-51 of incorporation or by these by-laws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the State, outside the State of Hawaii, at such place or places as they may from time to time determine. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of Hawaii. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place either within or without the State of Hawaii as shall be fixed by the vote of the shareholders at the annual meeting, and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a majority of the whole board shall be present, or they may meet at such place and time as shall be fixed by the consent in writing of all directors. Section 3. Regular meetings of the board of directors may be held with or without notice at such time and at such place as shall from time to time be determined by the board. Exhibit T3B-51 Section 4. Special meetings of the board of directors shall be called by the president on ten days' notice to each director, either personally or by mail or by telegram. Special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors, unless the board consists of only one director, in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 5. Attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of directors shall constitute a quorum for the transaction of business, unless a greater number is required by the articles of incorporation. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by the articles of incorporation. If a quorum shall not be present at any meeting Exhibit T3B-51 of directors, the directors present thereat may adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Unless otherwise provided by the articles of incorporation, any action required or permitted to be taken at any meeting of the directors or of any committee thereof, may be taken without a meeting, if all members of the board or committee, as the case may be, sign a written consent setting forth the action taken or to be taken, at any time before or after the intended effective date of such action. Section 8. Unless otherwise restricted by the articles of incorporation or these by-laws, members of the board of directors or any committee designated thereby may participate in a meeting of such board or committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. ARTICLE VII COMMITTEES OF DIRECTORS Section 1. The board of directors, by resolution adopted by a majority of the full board, may designate from among its members an executive committee and one or more other Exhibit T3B-51 committees. To the extent provided in such resolution or in the articles of incorporation or these by-laws, each committee shall have and exercise all of the authority of the board of directors, except as otherwise required by law. Vacancies in membership of the committee may be filled by the board of directors at a regular or special meeting of the board of directors. The committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of incorporation or of these bylaws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or the articles of incorporation or of these by-laws, a waiver thereof in writing, Exhibit T3B-51 signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice- presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Exhibit T3B-51 Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. Exhibit T3B-51 THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 10. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. Exhibit T3B-51 THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such Exhibit T3B-51 other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of Exhibit T3B-51 all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or, if there shall be more than one, the assistant treasurers, in the order determined by the board of directors (or if there be no such determination, then in the order of their election), shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of a corporation shall be represented by certificates or shall be uncertificated shares. Certificates shall be signed by the chairman or vice-chairman of the board of directors or the president or a vice-president and by the treasurer or an assistant treasurer or the secretary or an assistant secretary of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class, there shall be set forth upon the face or Exhibit T3B-51 back of the certificate, or each certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued, and if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers upon a certificate may be facsimiles if the certificate is counter-signed by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. TRANSFERS OF SHARES Section 3. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing Exhibit T3B-51 shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled, and the transaction recorded upon the books of the corporation. CLOSING OF TRANSFER BOOKS Section 4. For the purpose of determining shareholders entitled to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, seventy days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than seventy days and, in case of a meeting of shareholders, not less than ten days prior to the date of which the particular action, requiring such determination of shareholders, is to be taken. Exhibit T3B-51 If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the board of directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof. REGISTERED SHAREHOLDERS Section 5. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Hawaii. Exhibit T3B-51 LIST OF SHAREHOLDERS Section 6. The officer or agent having charge of the stock transfer books for shares of a corporation shall make a complete record of the shareholders entitled to vote at such meeting or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each. Such record shall be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting for the purpose thereof. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the articles of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to any provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the director, from time to time, in their absolute discretion, think proper as a reserve fund to Exhibit T3B-51 meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Hawaii." The seal may be used by causing it or a facsimile thereof to be impressed or affixed in any manner reproduced. Exhibit T3B-51 ARTICLE XII Section 1. These by-laws may be altered, amended or repealed, or new by-laws may be adopted at any regular or special meeting of shareholders at which a quorum is represented, by the affirmative vote of a majority of the shares entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting. EX-99.T3B52 130 exhibit_t3b-52.txt Exhibit T3B-52 As of 12/29/94 BY-LAWS OF OGDEN PROJECTS, INC. ARTICLE I Offices SECTION 1. REGISTERED OFFICE. The registered office shall be established and maintained at the office of The Corporation Trust Company, in the City of Wilmington, in the County of Kent, in the State of Delaware, and said corporation shall be the registered agent of this corporation in charge thereof. SECTION 2. OTHER OFFICES. The corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from tine to time appoint or the business of the corporation may require. ARTICLE II MEETING OF STOCKHOLDERS SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the election of directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting. 1 If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and they may transact such other corporate business as shall be stated in the notice of the meeting. SECTION 2. OTHER MEETINGS. Meetings of stockholders for any purpose other than the election of directors may be held at such tine and place, within or without the State of Delaware, as shall be stated in the notice of meeting. SECTION 3. VOTING. Each stockholder entitled to vote in accordance with the terms of the Certificate of Incorporation and in accordance with the provisions of these By-Laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. Upon the demand of any stockholder, the vote for directors and the vote upon any question before the meeting, shall be by ballot. All elections for directors shall be decided by plurality vote; all questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware. A complete list of the stockholders entitled to vote at the ensuing election, arranged in alphabetical order, with the address of each, and the number of shares held by each, shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the meeting and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. SECTION 4. QUORUM. Except as otherwise required by Law, by the Certificate of Incorporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum at all meetings of the stockholders. In case a quorum shall not be present at any meeting, a majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have the power to adjourn the meeting from time to time, without notice other than 2 announcement at the meeting, until the requisite amount of stock entitled to vote shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof. SECTION 5. SPECIAL MEETINGS. Special meetings of the stockholders for any purpose or purposes may be called by the Chairman of the Board and Chief Executive Officer or the President and Chief operating Officer or Secretary or by stockholders owning a majority of the outstanding shares of common stock or by resolution of the directors. SECTION 6. NOTICE OF MEETINGS. Written notice, stating the place, date and time of the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his address as it appears on the records of the corporation, not less than ten nor more than sixty days before the date of the meeting. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat. SECTION 7. ACTION WITHOUT MEETING. Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special or other meeting of stockholders, or any action which may be taken at any annual or special or other meeting, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS SECTION 1. NUMBER AND TERM. The number of directors which shall constitute the whole board shall not be less than three nor more than nine. The number of directors shall be set 3 by resolution of the holders of a majority of all the shares of stock outstanding and entitled to vote. The directors shall be elected at the annual meeting of the stockholders and each director shall be elected to serve until his successor shall be elected and shall qualify. Directors need not be stockholders. SECTION 2. RESIGNATIONS. Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the Chairman of the Board and Chief Executive Officer or Secretary. The acceptance of a resignation shall not be necessary to make it effective. SECTION 3. VACANCIES. If the office of any director, member of a committee or other officer becomes vacant, the remaining directors in office, though less than a quorum, by a majority vote, may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired tern and until his successor shall be duly chosen. SECTION 4. REMOVAL. Except as hereinafter provided, any director or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote, at a special meeting of the stockholders called for the purpose and the vacancies thus created may be filled, at the meeting held for the purpose of removal, by the affirmative vote of a majority in interest of the stockholders entitled to vote. SECTION 5. INCREASE OF NUMBER. The number of directors may be increased by amendment of these By-Laws by the affirmative vote of a majority of the directors, though less than a quorum, or, by the affirmative vote of a majority interest of the stockholders, at the annual meeting or at a special meeting called for that purpose, and by like vote the additional directors may be chosen at such meeting to hold office until the next annual election and until their successors are elected and qualify. SECTION 6. POWERS. The Board of Directors shall exercise all of the powers of the corporation except such as are by law, or by the Certificate of Incorporation of the corporation or by these By-Laws conferred upon or reserved to the stockholders. SECTION 7. COMMITTEES. The Board of Directors may, by resolution or resolutions passed by a majority of the whole 4 board, designate one or more committees, each committee to consist of two or more directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, or in these By-Laws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the By-Laws of the corporation; and, unless the resolution, these By-Laws, or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. SECTION 8. MEETINGS. Regular meetings of the directors may be held without notice at such places and times as shall be determined from time to time by resolution of the directors. Special meetings of the board may be called by the Chairman of the Board and Chief Executive Officer and shall be called by the Chairman of the Board and Chief Executive Officer on the written request of any two directors. Such notice shall be given to each director by mailing it to him at his residence or usual place of business at least three days before the meeting, or by delivering or telephoning or telegraphing it to him at least two days before the meeting. Special meetings shall be held at such place or places as may be determined by the directors, or shall be stated in the call of the meeting. Unless otherwise restricted by the Certificate of Incorporation or by these By-Laws, members of the Board of 5 Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. SECTION 9. QUORUM. A majority of the directors shall constitute a quorum for the transaction of business. If at any meeting of the board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. SECTION 10. COMPENSATION. Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor. SECTION 11. ACTION WITHOUT MEETING. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the board, or of such committee as the case may be, and such written consent is filed with the minutes of proceedings of the board or committee. ARTICLE IV OFFICERS SECTION 1. OFFICERS. The officers of the corporation shall be the Chairman of the Board and Chief Executive Officer, a President and Chief Operating Officer and a Secretary, all of whom shall be elected by the Board of Directors and who shall hold office until their successors are elected and qualified. In addition, the Board of Directors may elect Senior Vice Presidents, Executive Vice Presidents, Vice Presidents and such Assistant Secretaries as they may deem proper. None of the officers of the corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors 6 after each annual meeting. More than two offices may be held by the same person. SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors may appoint such other officers and agents as it may deem advisable, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. SECTION 3. CHAIRMAN. The Chairman of the Board of Directors shall preside at all meetings of the Board of Directors and of the stockholders, shall be the chief executive officer of the corporation, shall have general supervision over the business of the corporation and shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors. SECTION 4. PRESIDENT AND CHIEF OPERATING OFFICER. The President and Chief Operating Officer, subject to the control of the Board, shall have the general powers and duties of supervision and management usually vested in the office of President and Chief Operating Officer of a corporation. He shall preside at all meetings of the stockholders and meetings of the Board of Directors, if present thereat and in the absence of the Chairman of the Board of Directors, and shall have general supervision, direction and control of the business of the corporation. SECTION 5. VICE-PRESIDENT. Each Senior Vice President, Executive Vice President and Vice-President shall have such powers and shall perform such duties as shall be assigned to him by the directors. SECTION 6. SECRETARY. The Secretary shall give, or cause to be given, notice of all meetings of stockholders and directors, and all other notices required by law or by these By-Laws, and in case of his absence or refusal or neglect so to do, any such notice may be given by any person thereunto directed by the President, or by the directors, or stockholders, upon whose requisition the meeting is called as provided in these By-Laws. He shall record all the proceedings of the meetings of the corporation and of the directors in a book to be kept for that purpose, and shall perform such other duties as may be assigned to him by the directors or the President. He shall have the custody of the seal of the corporation and shall affix the same to all instruments requiring it, when authorized by the directors or the President, and attest the same. 7 SECTION 7. ASSISTANT SECRETARIES. Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the directors. ARTICLE V MISCELLANEOUS SECTION 1. CERTIFICATES OF STOCK. Certificates of stock, signed by the Chairman of the Board of Directors and Chief Executive Officer, President and Chief Operating Officer and the Secretary or an Assistant Secretary, shall be issued to each stockholder certifying the number of shares owned by him in the corporation. Any of or all the signatures may be facsimiles. SECTION 2. LOST CERTIFICATES. A new certificate of stock may be issued in the place of any certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate, or the issuance of any such new certificate. SECTION 3. TRANSFER OF SHARES. The shares of stock of the corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other person as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer. SECTION 4. STOCKHOLDERS RECORD DATE. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other 8 lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. SECTION 5. DIVIDENDS. Subject to the provisions of the Certificate of Incorporation, the Board of Directors may, out of funds legally available therefor at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividend there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper for working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the company. SECTION 6. SEAL. The corporate seal shall be circular in form and shall contain the name of the corporation, the year of its creation and the words "CORPORATE SEAL DELAWARE". Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. SECTION 7. FISCAL YEAR. The fiscal year of the corporation shall be determined by resolution of the Board of Directors. Until changed by the Board of Directors, the corporation's fiscal year shall be the calendar year. SECTION 8. CHECKS. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner as shall be determined from time to time by resolutions of the Board of Directors. SECTION 9. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly so stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his address as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not 9 entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by Statute. Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Certificate of Incorporation of the corporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. SECTION 10. INDEMNIFICATION OF DIRECTORS AND OFFICERS. (a) The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (b) The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in 10 good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper. (c) To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections 10(a) and 10(b) or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (d) Any indemnification under subsections 10(a) and 10(b) (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he had met the applicable standard of conduct set forth in subsections 10(a) and 10(b). Such determination shall be made (1) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in written opinion, or (3) by the stockholders. (e) Expenses incurred in defending a civil or criminal action, suit or proceeding shall be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in these By-laws. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board deems appropriate. (f) The indemnification and advancement of expenses provided by this Section 10 of the By-laws shall not be deemed exclusive of any other rights to which those seeking 11 indemnification or advancement of expenses may be entitled under any other by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (g) The corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such whether or not the corporation would have the power to indemnify him against such liability under the provisions of these By-laws. (h) For purposes of this section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence bad continued, would have had power and authority to indemnify its directors, officers, and employees or agents so that any who is or was a director, officer, employee or agent of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (i) Any amendment to this Section 10 shall not apply to any liability of a director, officer, employee or agent arising out of a transaction or omission occurring prior to the adoption of such amendment, but any such liability based on a transaction or omission occurring prior to the adoption of such amendment shall be governed by Section 10 of the By-laws, as in effect at the time of such transaction or omission. 12 ARTICLE VI AMENDMENTS These By-Laws may be amended, altered or repealed and By-Laws may be adopted at any annual meeting of the stockholders or at any special meeting thereof if notice of the proposed alteration or repeal or By -- Law or By-Laws to be made be contained in the notice of such special meeting, by the affirmative vote of a majority of the stock issued and outstanding and entitled to vote thereat , or by the affirmative vote of a majority of the Board of Directors, at any regular meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice of the proposed alteration or repeal, or By-Law or By-Laws to be made, be contained in the notice of such special meeting. 13 EX-99.T3B53 131 exhibit_t3b-53.txt Exhibit T3B-53 -------------- RRS HOLDINGS INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in Fairfield, New Jersey, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares~ registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes f or which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director, in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9 Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefore. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 10. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place, of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. EX-99.T3B54 132 exhibit_t3b-54.txt Exhibit T3B-54 OGDEN ENVIRONMENTAL SERVICES, INC. * * * * * BY- LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in the City of New York, State of New York, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall 1 prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding shares issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally -2- notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. -3- Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by -- laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time he determined by the board. -4- Section 7. Special meetings of the board may be called by the president on three days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by -- laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting -5- of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by -- laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefore. Members of special or standing committees may be allowed like compensation for attending committee meetings. -6- REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by -- laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the hoard of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by -- laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice - -- presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. -7- Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all -8- meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. -9- Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there he no such dc-termination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice -- president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to -10- notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. -11- ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by -- laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be -12- contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. -13- Exhibit T3B-54 OGDEN ENVIRONMENTAL SERVICES, INC. Action by Unanimous Consent in Writing of the Sole Shareholder in Lieu of the 1987 Annual Meeting January 19, 1987 The undersigned, constituting the holder of all the outstanding shares of Ogden Environmental Services, Inc., a Delaware corporation, by unanimous consent in writing pursuant to the authority of Section 228 of the Delaware General Corporation Law, without the formality of convening a meeting, does hereby consent to the following actions by the Corporation: RESOLVED, that the following persons be and are hereby elected Directors of this Corporation to serve until the next annual meeting of shareholders and their successors are duly elected and qualified to serve: Donald A. Krenz Albert 0. Cornelison, Jr. Robert M. DiGia Salvatore S. Ferrara and it is further RESOLVED, that the appropriate section of this Corporation's By-Laws is hereby amended and restated in its entirety to read as follows: "The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director, officer, employee or agent of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer, employee or agent against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any and all expenses (including attorneys' fees) incurred by any such person in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses if it shall ultimately be determined by a final judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall 1 impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation."; and it is further RESOLVED, that the officers of this Corporation and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN CORPORATION By: /s/ J.L. Effinger ------------------------------------ J. L. Effinger, Assistant Secretary -2- OGDEN ENVIRONMENTAL SERVICES, INC. Action by Unanimous Consent in Writing of the Board of Directors October 11, 1989 The undersigned, constituting the entire Board of Directors of Ogden Environmental Services, Inc., a Delaware corporation, by unanimous consent in writing pursuant to the authority of Section 141(f) of the Delaware General Corporation Law, without the formality of convening a meeting, do hereby severally and collectively consent to the following action by the Corporation: RESOLVED, that Sections 1. and 2. of Article V of this Corporation's By-Laws be amended, so that as amended, said Sections shall be and read in their entirety as follows: "Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board, a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a chairman of the board, a president, one or more vice-presidents, a secretary and a treasurer." and it is further RESOLVED, that Section 6. of Article V of this Corporation's By-Laws be renumbered "Section 6.a" and amended, so that as amended, said Section shall be and read in its entirety as follows: "Section 6.a. The president shall be the chief operating officer of the corporation and shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect." and it is further -3- RESOLVED, that a subheading entitled "The Chairman of the Board" and a new Section 6. of Article V be inserted before Section 6.a. of Article V and made a part of this Corporation's By-Laws, which subheading and Section 6. shall be and read as follows: "THE CHAIRMAN OF THE BOARD" "Section 6. The chairman of the board shall be the chief executive officer of the corporation, shall preside at all meetings of the board of directors and stockholders, and shall have such other powers and duties as may from time to time be prescribed by the board of directors, upon written directions given to him pursuant to resolutions duly adopted by the board of directors." and it is further RESOLVED, that Section 7. of Article V of this Corporation's By-Laws be amended, so that as amended, said Section shall be and read in its entirety as follows: "Section 7. The Chairman of the Board and/or the President shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation." and it is further RESOLVED, that David L. Sokol be and is hereby elected Chairman of the Board of this Corporation to serve until the next annual meeting of shareholders or until his successor is duly elected and qualified to serve; and it is further RESOLVED, that Brian DelleDonne be and is hereby elected President of this Corporation to serve until the next annual meeting of shareholders or until his successor is duly elected and qualified to serve; and it is further -4- RESOLVED, that the officers of this Corporation and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ Ralph E. Ablon /s/ Davis L. Sokol - --------------------------- ------------------------------ RALPH E. ABLON DAVID L. SOKOL /s/ Robert M. Digia /s/ Scott G. Macklin - --------------------------- ------------------------------ ROBERT M. DI GIA SCOTT G. MACKLIN /s/ Maria P. Monet ------------------------- MARIA P. MONET -5- Exhibit T3B-54 STATEMENT OF SOLE INCORPORATOR OF OGDEN ENVIRONMENTAL SERVICES, INC. * * * * * The certificate of incorporation of this corporation having been filed in the office of the Secretary of State, the undersigned, being the sole incorporator named in said certificate, does hereby state that the following actions were taken on this day for the purpose of organizing this corporation: 1. By-laws for the regulation of the affairs of the corporation were adopted by the undersigned incorporator and were ordered inserted in the minute book immediately following the copy of the certificate of incorporation and before this instrument. 2. The following persons were elected as directors to hold office until the first annual meeting of stockholders or until their respective successors are elected and qualified: Donald A. Krenz Robert E. Curry Jr. James M. Russo David L. Sokol Salvatore S. Ferrara 3. The board of directors was authorized, in its discretion, to issue the shares of the capital stock of this corporation to the full amount or number of shares authorized by the certificate of incorporation, in such amounts and for such considerations as from time to time shall be determined by the board of directors and as may be permitted by law. Dated, August 25th, 1986. /s/ J. L. Austin ------------------------- J. L. Austin 1 EX-99.T3B55 133 exhibit_t3b-55.txt Exhibit T3B-55 BYLAWS OF OGDEN SIGC ENERGY II, INC. ARTICLE I - OFFICE The corporation shall maintain a principal office in the Commonwealth of Virginia, County of Fairfax and may also have an office or offices at such other place or places, either within or without the Commonwealth of Virginia, as may be designated by the Board of Directors. ARTICLE II - STOCKHOLDERS 1. ANNUAL MEETING An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place on such date, and at such time as the Board of Directors shall each year fix, which date shall be within fourteen (14) months subsequent to the last annual meeting of stockholders. 2. SPECIAL MEETING Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President, by the Board of Directors, or by the holders of not less than ten percent (10%) of the outstanding voting stock of the corporation. The special meeting will then be held on a date established by the President not more than ninety (90) days after the Secretary has notified the Board of Directors. For all special meetings, the President or the Board of Directors shall have the power to determine (within the limitations permitted by law) the form, content, means of communication and timing of notice of such meeting. 3. PLACE OF MEETING The directors may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for meeting or any annual meeting or for any special meeting. A waiver of notice signed by all stockholders 1 Exhibit T3B-55 entitled to vote at a meeting may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for holding such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation. 4. NOTICE OF MEETING Written or printed notice stating the place, day and hour of the meeting, and accompanied by an agenda of the meeting shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary or the officer or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the stockholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid; provided that written notice of a meeting shall be delivered, as set forth above, not less than twenty (20) days before the date of such meeting if action is to be taken on a plan contemplating merger or consolidation of the corporation with another corporation. 5. QUORUM At any meeting of stockholders, thirty-three and one-half percent (3 3-1/2%) of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than said number of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time and notice shall be given to all shareholders. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. 6. PROXIES At all meetings of stockholders, a stockholder may vote by 2 Exhibit T3B-55 proxy executed in writing by the stockholder or by his duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. The Board of Directors, in advance of any annual or special meeting of the shareholders, may prescribe additional regulations concerning the manner of execution and filing of proxies and the validation of the same, which are intended to be voted at any such meeting. 7. VOTING Each stockholder entitled to vote in accordance with the terms and provisions of the Certificate of Incorporation and these Bylaws shall be entitled to one (1) vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder. Upon the demand of any stockholder, the vote for directors and upon any questions before the meeting shall be by ballot. All elections for directors shall be decided by majority vote except as otherwise provided by Certificate of Incorporation or the laws of this State. 8. ORDER OF BUSINESS The order of business at all meetings of the stockholders shall be determined by the Chairman, President, or the Board of Directors. ARTICLE III - BOARD OF DIRECTORS 1. GENERAL POWER The business and affairs of the corporation shall be managed by its Board of Directors. The directors shall in all cases act as a Board. 2. NUMBER, TENURE AND QUALIFICATIONS The number of directors of the corporation shall be not less than three (3) nor more than seven (7). Each director shall hold office until the next annual meeting of stockholders, at which the directors are to be elected, and until his successor shall have been elected and qualified. The actual number of directors shall be established by the Board. 3. REGULAR MEETINGS A regular meeting of the directors shall be held without 3 Exhibit T3B-55 other notice than this Bylaw immediately after, and at the same place as, the annual meeting of the stockholders. The directors may provide, by resolution, the time and place for the holding of additional regular meetings without other notice than such resolution. 4. SPECIAL MEETINGS Special meetings of the directors may be called by or at the request of the President, Secretary, or any two (2) directors. The person or persons authorized to call special meetings of the directors may fix the place for holding any special meeting of the directors called by them. 5. NOTICE Notice of any special meeting shall be given at least two (2) days prior thereto by written notice delivered personally, or by telegram or mailed to each director at his business address. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 6. QUORUM At any meeting of the directors, a majority of those elected and currently serving shall constitute a quorum for the transaction of business, but if less than said number is present at a meeting a majority of the directors present may adjourn the meeting from time to time without further notice. 7. MANNER OF ACTING The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the directors. 8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES 4 Exhibit T3B-55 Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board may be filled by a vote of a majority of the directors then in office, although less than a quorum exists. A director elected to fill a vacancy caused by resignation, death or removal, shall be elected to hold office for the unexpired term of his predecessor. 9. REMOVAL OF DIRECTORS Any or all of the directors may be removed for cause by vote of the stockholders or by action of the Board. Directors may be removed without cause only by action of the stockholders. 10. RESIGNATION A director may resign at any time by giving written notice to the Board, the President or the Secretary of the corporation. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the Board, and the acceptance of the resignation shall not be necessary to make it effective. 11. PRESUMPTION OF ASSENT A director of the corporation who is present at a meeting of the directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 12. COMMITTEES The Board of Directors may appoint such Committees from among its members as the Board desires. All such Committees shall serve at the pleasure of the Board and shall have such duties, powers and responsibilities as set forth in the resolution establishing same. 13. ALTERNATIVE METHODS OF CONDUCTING BUSINESS 5 Exhibit T3B-55 A. Action by Consent of Board without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any Committee thereof may be taken without a meeting if all members of the Board or Committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or Committee. B. Participation Through Usage of Teleconferencing Equipment. Members of the Board of Directors or any Committee designated thereby may participate in a meeting of such Board or Committee by means of a conference telephone or television or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. When such meeting is conducted by means of a conference telephone, television or similar communications equipment, a written record shall be made of the action(s) taken at such meeting. ARTICLE IV - OFFICERS 1. NUMBER The officers of the corporation shall be a Chief Executive Officer, President, one or more Vice Presidents, a Secretary and a Treasurer, each of whom shall be elected by the directors. 2. ELECTION AND TERM OF OFFICE The officers of the corporation to be elected by the directors shall be elected annually at the first meeting of the Board of Directors held after each annual meeting of the stockholders. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. 3. REMOVAL Any officer or agent elected or appointed by the directors may be removed by the directors whenever, in their judgment, the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the 6 Exhibit T3B-55 contract rights, if any, of the person so removed. 4. VACANCIES A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the directors for the unexpired portion of the term. 5. CHIEF EXECUTIVE OFFICER The Chief Executive Officer (CEO), subject to the directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the stockholders and of the directors. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts, or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated to the directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of Chief Executive Officer and such other duties as may be prescribed by the directors from time to time. The CEO shall have the authority to remove any corporate officer from office when, in his sole discretion, the removal would be in the best interests of the corporation 6. PRESIDENT The President shall be the Chief Operating Officer of the corporation and, subject to the directors, shall in general supervise and control all of the business operations of the corporation. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the directors from time to time. 7 Exhibit T3B-55 7. VICE PRESIDENT The Vice President shall be elected by the Board of Directors and serve at their request. The Vice President shall perform such duties as shall be designated by the Board of Directors or the President and shall report to the President unless he designates another officer or Committee to receive said reports. 8. SECRETARY The Secretary shall keep the minutes of the stockholders and of the directors' meetings in one or more books provided for that purpose, see that all notices are duly given in accordance with the provisions of these Bylaws and keep a register of the post office address of each stockholder which shall be furnished by such stockholder, have general charge of the stock transfer books of the corporation and in general perform all duties incident to the office of the Secretary and such other duties as from time to time may be assigned to him by the President or by the directors. 9. TREASURER If required by the directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with surety or sureties as the directors shall determine. He shall have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for monies due and payable to the corporation from any source whatsoever, and deposit all such monies in the name of the corporation in such bank, trust companies or other depositories as shall be selected in accordance with these Bylaws and in general perform all of the duties incident to the office of the Treasurer and such other duties as from time to time may be assigned to him by the President or by the directors. ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS 1. CONTRACTS The directors may authorize any officer or officers, agent or agents to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. 8 Exhibit T3B-55 2. LOANS No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the directors or in accordance with policy adopted from time-to-time or authority delegated by the Board of Directors. 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the directors. 4. DEPOSITS All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the directors may select. 5. FACSIMILE SIGNATURES Facsimile signatures of any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a Committee therefore. ARTICLE VI - CERTIFICATES FOR SHARES AND TRANSFER 1. CERTIFICATES FOR SHARES Certificates representing shares of the corporation shall be in such form as shall be determined by the directors. Such certificates shall be signed by the President and by the Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the stockholders, the number of shares and date of issue shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificates shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate, a new one may be issued therefor upon such 9 Exhibit T3B-55 terms and indemnity to the corporation as the directors may prescribe. 2. TRANSFER OF SHARES A. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto and cancel the old certificate; every such transfer shall be entered on the transfer book of the corporation which shall be kept at its principal office or at the office of a transfer agent appointed by the corporation. B. The corporation shall be entitled to treat the holder of record of any shares as the holder in fact thereof, and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of this state. ARTICLE VII - FISCAL YEAR The Fiscal Year of the corporation shall begin on the first day of January in each year. ARTICLE VIII - DIVIDENDS The directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law. ARTICLE IX - CORPORATE RECORDS 1. INSPECTION OF RECORDS BY SHAREHOLDERS The share register, or duplicate share register, shall be open to inspection by a shareholder upon proper written request for a purpose reasonably related to his interests as a shareholder. Such inspection by a shareholder may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. Shareholders acting pursuant to this provision shall request inspection by writing to the President or Secretary of the corporation, specifying the purpose for such inspection under oath, and 10 Exhibit T3B-55 sending a copy of such request to the corporation's General Counsel. 2. INSPECTION OF RECORDS BY DIRECTORS Every director shall have the right at any reasonable time to inspect all books, records, documents of every kind, and the physical properties of the corporation, and also of its subsidiary corporations, domestic or foreign. Such a right must be reasonably related, as determined by a majority of the Board of Directors then in office to the director's position and responsibilities as a director of the corporation. Such inspection by a director may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. ARTICLE X - SEAL The directors may provide for a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation, the state of incorporation, and the year of incorporation. ARTICLE XI - WAIVER OF NOTICE Unless otherwise provided by law, whenever any notice is required to be given to any stockholder or director of the corporation under the provisions of these Bylaws or under the provisions of the Certificate of Incorporation, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XII - AMENDMENTS A. These Bylaws may be altered, amended, or repealed, and new Bylaws may be adopted by a vote of the stockholders representing a majority of all the shares issued outstanding and authorized to vote at any annual stockholders' meeting or at any special stockholders' meeting when the proposed amendment has been set out in the notice of such meeting or by written consent signed by all stockholders of record. B. These Bylaws may be altered, amended or repealed and new Bylaws adopted without shareholder approval by the affirmative vote of a majority of the Board of directors provided, however, that the Board shall not have the power to alter, amend or repeal any Bylaw adopted by the shareholders pursuant to paragraph A above of said Bylaws, 11 Exhibit T3B-55 if such Bylaw, when adopted, contains a clause therein that it may not be altered, amended, or repealed by the Board of Directors. ARTICLE XIII - INDEMNIFICATION A. Action etc. Other Than by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nob contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful. B. Actions, etc., by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably 12 Exhibit T3B-55 believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of this duty to the corporation unless and only to the extent that the court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability by in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other such court shall deem proper. C. Determination of Indemnification. Any indemnification under items A or B (unless ordered by a court) shall be made by the corporation unless a determination is reasonably and promptly made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in written opinion, or (iii) by the stockholders, that such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe that his conduct was unlawful. D. Indemnification Against Expenses of Successful Party. Notwithstanding the other provisions of this Article, to the extent that an agent of the corporation has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any proceeding or in defense of any claim, issue or matter therein, such agent shall be indemnified against all expenses incurred in connection therewith. E. Advances of Expenses. Except as limited by item F of this Article, expenses incurred in any proceeding shall be paid by the corporation in advance of the final disposition of such proceeding, if the agent shall undertake to repay such amount in the event that it is ultimately determined, as provided herein, that such person is not entitled to indemnification. Notwithstanding the foregoing, no advance shall be made by the corporation if a determination is reasonably and promptly made by the Board of Directors by a majority vote of quorum of disinterested directors, or (if 13 Exhibit T3B-55 such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs) by independent legal counsel in a written opinion, that, based upon the facts known to the Board or counsel at the time such determination is made, such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Board or Independent legal counsel reasonably determines that such person deliberately breached his duty to the corporation or its shareholders. F. Right of Agent to Indemnification Upon Application: Procedure Upon Application. Any indemnification under items B, C, and D, or advance under item E of this Article, shall be made promptly, and in any event within ninety days, upon the written request of the agent, unless with respect to applications under items B, C, or E, a determination is reasonably and promptly made by the Board of Directors by a majority vote or a quorum of disinterested directors that such agent acted in a manner set forth in such items as to justify the corporation's not indemnifying or making an advance to the agent. In the event no quorum of disinterested directors is obtainable, the Board of Directors shall promptly direct that independent legal counsel shall decide whether the agent acted in the manner set forth in such Sections as to justify the corporation's not indemnifying or making an advance to the agent. The right to indemnification or advances as granted by this Article shall be enforceable by the agent in any court of competent jurisdiction, if the Board or independent legal counsel denies the claim, in whole or in part, or if no disposition of such claim is made within ninety days. The agent's expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the corporation. G. Other Rights and Remedies. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another 14 Exhibit T3B-55 capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. All rights to indemnification under this Article shall be deemed to be provided by a contract between the corporation and the director, officer, employee or agent who serves in such capacity at any time while these Bylaws and other relevant provisions of the general corporation law and other applicable law, if any, are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing. H. Insurance. Upon resolution passed by the Board, the corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article. I. Constituent Corporations. For the purposes of this Article, references to the "the corporation" shall include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would if he had served the resulting or surviving corporation in the same capacity. J. Other Enterprises. Fines, and Serving at Corporation's Request. For the purposes of this Article, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes 15 Exhibit T3B-55 duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; any person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Article. K. Savings Clause. If this Article or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each agent of the corporation as to expenses (including attorneys' fees), judgments, fines and amounts paid in a settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including a grand jury proceeding and an action by the corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated or by any other applicable law. 16 EX-99.T3B56 134 exhibit_t3b-56.txt Exhibit T3b-56 BYLAWS OF OGDEN SIGC ENERGY II, INC. ARTICLE I - OFFICE The corporation shall maintain a principal office in the Commonwealth of Virginia, County of Fairfax and may also have an office or offices at such other place or places, either within or without the Commonwealth of Virginia, as may be designated by the Board of Directors. ARTICLE II - STOCKHOLDERS 1. ANNUAL MEETING An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place on such date, and at such time as the Board of Directors shall each year fix, which date shall be within fourteen (14) months subsequent to the last annual meeting of stockholders. 2. SPECIAL MEETING Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President, by the Board of Directors, or by the holders of not less than ten percent (10%) of the outstanding voting stock of the corporation. The special meeting will then be held on a date established by the President not more than ninety (90) days after the Secretary has notified the Board of Directors. For all special meetings, the President or the Board of Directors shall have the power to determine (within the limitations permitted by law) the form, content, means of communication and timing of notice of such meeting. 3. PLACE OF MEETING The directors may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for meeting or any annual meeting or for any special meeting. A waiver of notice signed by all stockholders entitled to vote at a meeting may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for holding such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation. 4. NOTICE OF MEETING Written or printed notice stating the place, day and hour of the meeting, and accompanied by an agenda of the meeting shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary or the officer or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the stockholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid; provided that written notice of a meeting shall be delivered, as set forth above, not less than twenty (20) days before the date of such meeting if action is to be taken on a plan contemplating merger or consolidation of the corporation with another corporation. 5. QUORUM At any meeting of stockholders, thirty-three and one-half percent (3 3-1/2%) of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than said number of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time and notice shall be given to all shareholders. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. 6. PROXIES At all meetings of stockholders, a stockholder may vote by proxy executed in writing by the stockholder or by his duly authorized attorney in fact. Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. The Board of Directors, in advance of any annual or special meeting of the shareholders, may prescribe additional regulations concerning the manner of execution and filing of proxies and the validation of the same, which are intended to be voted at any such meeting. 7. VOTING Each stockholder entitled to vote in accordance with the terms and provisions of the Certificate of Incorporation and these Bylaws shall be entitled to one (1) vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder. Upon the demand of any stockholder, the vote for directors and upon any questions before the meeting shall be by ballot. All elections for directors shall be decided by majority vote except as otherwise provided by Certificate of Incorporation or the laws of this State. 8. ORDER OF BUSINESS The order of business at all meetings of the stockholders shall be determined by the Chairman, President, or the Board of Directors. ARTICLE III - BOARD OF DIRECTORS 1. GENERAL POWER The business and affairs of the corporation shall be managed by its Board of Directors. The directors shall in all cases act as a Board. 2. NUMBER, TENURE AND QUALIFICATIONS The number of directors of the corporation shall be not less than three (3) nor more than seven (7). Each director shall hold office until the next annual meeting of stockholders, at which the directors are to be elected, and until his successor shall have been elected and qualified. The actual number of directors shall be established by the Board. 3. REGULAR MEETINGS A regular meeting of the directors shall be held without other notice than this Bylaw immediately after, and at the same place as, the annual meeting of the stockholders. The directors may provide, by resolution, the time and place for the holding of additional regular meetings without other notice than such resolution. 4. SPECIAL MEETINGS Special meetings of the directors may be called by or at the request of the President, Secretary, or any two (2) directors. The person or persons authorized to call special meetings of the directors may fix the place for holding any special meeting of the directors called by them. 5. NOTICE Notice of any special meeting shall be given at least two (2) days prior thereto by written notice delivered personally, or by telegram or mailed to each director at his business address. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 6. QUORUM At any meeting of the directors, a majority of those elected and currently serving shall constitute a quorum for the transaction of business, but if less than said number is present at a meeting a majority of the directors present may adjourn the meeting from time to time without further notice. 7. MANNER OF ACTING The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the directors. 8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board may be filled by a vote of a majority of the directors then in office, although less than a quorum exists. A director elected to fill a vacancy caused by resignation, death or removal, shall be elected to hold office for the unexpired term of his predecessor. 9. REMOVAL OF DIRECTORS Any or all of the directors may be removed for cause by vote of the stockholders or by action of the Board. Directors may be removed without cause only by action of the stockholders. 10. RESIGNATION A director may resign at any time by giving written notice to the Board, the President or the Secretary of the corporation. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the Board, and the acceptance of the resignation shall not be necessary to make it effective. 11. PRESUMPTION OF ASSENT A director of the corporation who is present at a meeting of the directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 12. COMMITTEES The Board of Directors may appoint such Committees from among its members as the Board desires. All such Committees shall serve at the pleasure of the Board and shall have such duties, powers and responsibilities as set forth in the resolution establishing same. 13. ALTERNATIVE METHODS OF CONDUCTING BUSINESS A. Action by Consent of Board without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any Committee thereof may be taken without a meeting if all members of the Board or Committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or Committee. B. Participation Through Usage of Teleconferencing Equipment. Members of the Board of Directors or any Committee designated thereby may participate in a meeting of such Board or Committee by means of a conference telephone or television or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. When such meeting is conducted by means of a conference telephone, television or similar communications equipment, a written record shall be made of the action(s) taken at such meeting. ARTICLE IV - OFFICERS 1. NUMBER The officers of the corporation shall be a Chief Executive Officer, President, one or more Vice Presidents, a Secretary and a Treasurer, each of whom shall be elected by the directors. 2. ELECTION AND TERM OF OFFICE The officers of the corporation to be elected by the directors shall be elected annually at the first meeting of the Board of Directors held after each annual meeting of the stockholders. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. 3. REMOVAL Any officer or agent elected or appointed by the directors may be removed by the directors whenever, in their judgment, the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. 4. VACANCIES A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the directors for the unexpired portion of the term. 5. CHIEF EXECUTIVE OFFICER The Chief Executive Officer (CEO), subject to the directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the stockholders and of the directors. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts, or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated to the directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of Chief Executive Officer and such other duties as may be prescribed by the directors from time to time. The CEO shall have the authority to remove any corporate officer from office when, in his sole discretion, the removal would be in the best interests of the corporation 6. PRESIDENT The President shall be the Chief Operating Officer of the corporation and, subject to the directors, shall in general supervise and control all of the business operations of the corporation. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the directors from time to time. 7. VICE PRESIDENT The Vice President shall be elected by the Board of Directors and serve at their request. The Vice President shall perform such duties as shall be designated by the Board of Directors or the President and shall report to the President unless he designates another officer or Committee to receive said reports. 8. SECRETARY The Secretary shall keep the minutes of the stockholders and of the directors' meetings in one or more books provided for that purpose, see that all notices are duly given in accordance with the provisions of these Bylaws and keep a register of the post office address of each stockholder which shall be furnished by such stockholder, have general charge of the stock transfer books of the corporation and in general perform all duties incident to the office of the Secretary and such other duties as from time to time may be assigned to him by the President or by the directors. 9. TREASURER If required by the directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with surety or sureties as the directors shall determine. He shall have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for monies due and payable to the corporation from any source whatsoever, and deposit all such monies in the name of the corporation in such bank, trust companies or other depositories as shall be selected in accordance with these Bylaws and in general perform all of the duties incident to the office of the Treasurer and such other duties as from time to time may be assigned to him by the President or by the directors. ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS 1. CONTRACTS The directors may authorize any officer or officers, agent or agents to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. 2. LOANS No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the directors or in accordance with policy adopted from time-to-time or authority delegated by the Board of Directors. 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the directors. 4. DEPOSITS All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the directors may select. 5. FACSIMILE SIGNATURES Facsimile signatures of any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a Committee therefore. ARTICLE VI - CERTIFICATES FOR SHARES AND TRANSFER 1. CERTIFICATES FOR SHARES Certificates representing shares of the corporation shall be in such form as shall be determined by the directors. Such certificates shall be signed by the President and by the Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the stockholders, the number of shares and date of issue shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificates shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate, a new one may be issued therefor upon such terms and indemnity to the corporation as the directors may prescribe. 2. TRANSFER OF SHARES A. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto and cancel the old certificate; every such transfer shall be entered on the transfer book of the corporation which shall be kept at its principal office or at the office of a transfer agent appointed by the corporation. B. The corporation shall be entitled to treat the holder of record of any shares as the holder in fact thereof, and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of this state. ARTICLE VII - FISCAL YEAR The Fiscal Year of the corporation shall begin on the first day of January in each year. ARTICLE VIII - DIVIDENDS The directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law. ARTICLE IX - CORPORATE RECORDS 1. INSPECTION OF RECORDS BY SHAREHOLDERS The share register, or duplicate share register, shall be open to inspection by a shareholder upon proper written request for a purpose reasonably related to his interests as a shareholder. Such inspection by a shareholder may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. Shareholders acting pursuant to this provision shall request inspection by writing to the President or Secretary of the corporation, specifying the purpose for such inspection under oath, and sending a copy of such request to the corporation's General Counsel. 2. INSPECTION OF RECORDS BY DIRECTORS Every director shall have the right at any reasonable time to inspect all books, records, documents of every kind, and the physical properties of the corporation, and also of its subsidiary corporations, domestic or foreign. Such a right must be reasonably related, as determined by a majority of the Board of Directors then in office to the director's position and responsibilities as a director of the corporation. Such inspection by a director may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. ARTICLE X - SEAL The directors may provide for a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation, the state of incorporation, and the year of incorporation. ARTICLE XI - WAIVER OF NOTICE Unless otherwise provided by law, whenever any notice is required to be given to any stockholder or director of the corporation under the provisions of these Bylaws or under the provisions of the Certificate of Incorporation, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XII - AMENDMENTS A. These Bylaws may be altered, amended, or repealed, and new Bylaws may be adopted by a vote of the stockholders representing a majority of all the shares issued outstanding and authorized to vote at any annual stockholders' meeting or at any special stockholders' meeting when the proposed amendment has been set out in the notice of such meeting or by written consent signed by all stockholders of record. B. These Bylaws may be altered, amended or repealed and new Bylaws adopted without shareholder approval by the affirmative vote of a majority of the Board of directors provided, however, that the Board shall not have the power to alter, amend or repeal any Bylaw adopted by the shareholders pursuant to paragraph A above of said Bylaws, if such Bylaw, when adopted, contains a clause therein that it may not be altered, amended, or repealed by the Board of Directors. ARTICLE XIII - INDEMNIFICATION A. Action etc. Other Than by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nob contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful. B. Actions, etc., by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of this duty to the corporation unless and only to the extent that the court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability by in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other such court shall deem proper. C. Determination of Indemnification. Any indemnification under items A or B (unless ordered by a court) shall be made by the corporation unless a determination is reasonably and promptly made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in written opinion, or (iii) by the stockholders, that such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe that his conduct was unlawful. D. Indemnification Against Expenses of Successful Party. Notwithstanding the other provisions of this Article, to the extent that an agent of the corporation has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any proceeding or in defense of any claim, issue or matter therein, such agent shall be indemnified against all expenses incurred in connection therewith. E. Advances of Expenses. Except as limited by item F of this Article, expenses incurred in any proceeding shall be paid by the corporation in advance of the final disposition of such proceeding, if the agent shall undertake to repay such amount in the event that it is ultimately determined, as provided herein, that such person is not entitled to indemnification. Notwithstanding the foregoing, no advance shall be made by the corporation if a determination is reasonably and promptly made by the Board of Directors by a majority vote of quorum of disinterested directors, or (if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs) by independent legal counsel in a written opinion, that, based upon the facts known to the Board or counsel at the time such determination is made, such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Board or Independent legal counsel reasonably determines that such person deliberately breached his duty to the corporation or its shareholders. F. Right of Agent to Indemnification Upon Application: Procedure Upon Application. Any indemnification under items B, C, and D, or advance under item E of this Article, shall be made promptly, and in any event within ninety days, upon the written request of the agent, unless with respect to applications under items B, C, or E, a determination is reasonably and promptly made by the Board of Directors by a majority vote or a quorum of disinterested directors that such agent acted in a manner set forth in such items as to justify the corporation's not indemnifying or making an advance to the agent. In the event no quorum of disinterested directors is obtainable, the Board of Directors shall promptly direct that independent legal counsel shall decide whether the agent acted in the manner set forth in such Sections as to justify the corporation's not indemnifying or making an advance to the agent. The right to indemnification or advances as granted by this Article shall be enforceable by the agent in any court of competent jurisdiction, if the Board or independent legal counsel denies the claim, in whole or in part, or if no disposition of such claim is made within ninety days. The agent's expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the corporation. G. Other Rights and Remedies. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. All rights to indemnification under this Article shall be deemed to be provided by a contract between the corporation and the director, officer, employee or agent who serves in such capacity at any time while these Bylaws and other relevant provisions of the general corporation law and other applicable law, if any, are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing. H. Insurance. Upon resolution passed by the Board, the corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article. I. Constituent Corporations. For the purposes of this Article, references to the "the corporation" shall include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would if he had served the resulting or surviving corporation in the same capacity. J. Other Enterprises. Fines, and Serving at Corporation's Request. For the purposes of this Article, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; any person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Article. K. Savings Clause. If this Article or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each agent of the corporation as to expenses (including attorneys' fees), judgments, fines and amounts paid in a settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including a grand jury proceeding and an action by the corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated or by any other applicable law. EX-99.T3B57 135 exhibit_t3b-57.txt Exhibit T3B-57 BYLAWS OF OGDEN SIGC GEOTHERMAL OPERATIONS, INC. ARTICLE I - OFFICE The corporation shall maintain a principal office in the Commonwealth of Virginia, County of Fairfax, and may also have an office or offices at such other place or places, either within or without the State of California, as may be designated by the Board of Directors. ARTICLE II - STOCKHOLDERS 1. ANNUAL MEETING An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place on such date, and at such time as the Board of Directors shall each year fix, which date shall be within fourteen (14) months subsequent to the last annual meeting of stockholders. 2. SPECIAL MEETING Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the President, by the Board of Directors, or by the holders of not less than ten percent (10%) of the outstanding voting stock of the corporation. The special meeting will then be held on a date established by the President not more than ninety (90) days after the Secretary has notified the Board of Directors. For all special meetings, the President or the Board of Directors shall have the power to determine (within the limitations permitted by law) the form, content, means of communication and timing of notice of such meeting. 3. PLACE OF MEETING The directors may designate any place, either within or without the, state unless otherwise prescribed by statute, 1 Exhibit T3B-57 as the place for meeting or any annual meeting or for any special meeting. A waiver of notice signed by all stockholders entitled to vote at a meeting may designate any place, either within or without the state unless otherwise prescribed by statute, as the place for holding such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal office of the corporation. 4. NOTICE OF MEETING Written or printed notice stating the place, day and hour of the meeting, and accompanied by an agenda of the meeting shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President, or the Secretary or the officer or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the stockholder at his address as it appears on the stock transfer books of the corporation, with postage thereon prepaid; provided that written notice of a meeting shall be delivered, as set forth above, not less than twenty (20) days before the date of such meeting if action is to be taken on a plan contemplating merger or consolidation of the corporation with another corporation. 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE A. For the purpose of determining the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or in order to make a determination of stockholders for any proper purpose, except for the payment of dividends, the Board of Directors of the corporation may provide that the stock transfer books shall be closed for stated period but not to exceed, in any case, sixty (60) days. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of stockholders, such date in any case to be not more than sixty (60) days prior to the date on which the particular action, requiring such determination of stockholders, is to be 2 Exhibit T3B-57 taken. If the stock transfer books are not closed and no record date is fixed for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders, the date on which notice of the meeting is mailed shall be the record date for such determination of stockholders. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof. B. For the purpose of determining the stockholders entitled to receive payment of any dividend, the Board of Directors shall fix in advance a date as the record date for such determination of stockholders, such date in any case to be not more than sixty (60) days prior to the date on which the particular action, requiring such determination of stockholders, is to be taken. If no record date is fixed for the determination of stockholders entitled to receive payment of a dividend, the date on which the resolution of the Board of Directors declaring such dividend is adopted shall be the record date for such determination of stockholders. 6. VOTING LISTS The officer or agent having charge of the stock transfer books for shares of the corporation shall make, at least ten (10) days before each meeting of stockholders, a complete list of the stockholders entitled to vote at such meetings, or any adjournment thereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten (10) days prior to such meeting, shall be kept on file at the principal office of the corporation and shall be subject to inspection at any time during the usual business hours by any person who shall have been a stockholder of record for at least six (6) months immediately preceding his request to inspect the list or who shall be the holder of record of at least five (5%) of all the outstanding shares of the corporation. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any stockholder during the whole time of the meeting. The original stock transfer book shall be prima facie evidence as to who are the stockholders 3 Exhibit T3B-57 entitled to examine such list or transfer books or to vote at the meeting of stockholders. 7. QUORUM At any meeting of stockholders, thirty-three and one-half percent (33-1/2%) of the outstanding shares of the corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders. If less than said number of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time and notice shall be given to all shareholders. At such adjourned meeting, at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. 8. PROXIES At all meetings of stockholders, a stockholder may vote by proxy executed in writing by the stockholder or by his duly authorized attorney in fact Such proxy shall be filed with the Secretary of the corporation before or at the time of the meeting. The Board of Directors, in advance of any annual or special meeting of the shareholders, may prescribe additional regulations concerning the manner of execution and filing of proxies and the validation of the same, which are intended to be voted at any such meeting. 9. VOTING A. General. Each stockholder entitled to vote in accordance with the terms and provisions of the Certificate of Incorporation and these Bylaws shall be entitled to one (1) vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder. Upon the demand of any stockholder, the vote for directors and upon any questions before the meeting shall be by ballot All elections for directors shall be decided by majority vote except as otherwise provided by Certificate of Incorporation or the laws of this State. 4 Exhibit T3B-57 B. Voting by Pledge, Trustee, Fiduciary. Shares standing in the name of any persons as pledgee, trustee, or other fiduciary may be voted and all the rights incident thereto may be exercised only by the pledgee, trustee, or other fiduciary, in person or by proxy, and without proof of authority. However, when a trust company has caused shares to be registered in the name of one or more nominees of the trust company, such shares may be voted and all rights incident thereto may be exercised by such nominee or nominees without proof of authority. C. Voting Shares in Names of Two or More Persons. Shares standing in the names of two or more persons shall be voted or represented in accordance with the vote or consent of the majority of the persons in whose names the shares stand. If only one such person is present in person or by proxy, he may vote all the shares, and all the shares standing in the names of such persons are represented for the purpose of determining a quorum. This Bylaw applies to the voting of shares by two or more administrators, executors, trustees, or other fiduciaries, unless the instrument or order of court appointing them otherwise directs. 10. ORDER OF BUSINESS The order of business at all meetings of the stockholders shall be determined by the Chairman, President, or the Board of Directors. ARTICLE III - BOARD OF DIRECTORS 1. GENERAL POWER The business and affairs of the corporation shall be managed by its Board of Directors. The directors shall in all cases act as a Board. 2. NUMBER, TENURE AND QUALIFICATIONS The number of directors of the corporation shall be not less than three (3) nor more than fifteen (15). Each 5 Exhibit T3B-57 director shall hold office until the next annual meeting of stockholders, at which the class of directors of which be is a member is to be elected, and until his successor shall have been elected and qualified. The actual number of directors shall be established by the Board. 3. REGULAR MEETINGS A regular meeting of the directors shall be held without other notice than this Bylaw immediately after, and at the same place as, the annual meeting of the stockholders. The directors may provide, by resolution, the time and place for the holding of additional regular meetings without other notice than such resolution. 4. SPECIAL MEETINGS Special meetings of the directors may be called by or at the request of the Chairman, President, Secretary, or any two (2) directors. The person or persons authorized to call special meetings of the directors may fix the place for holding any special meeting of the directors called by them. 5. NOTICE Notice of any special meeting shall be given at least two (2) days prior thereto by written notice delivered personally, or by telegram or mailed to each director at his business address. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. 6. QUORUM At any meeting of the directors a majority of those elected and currently serving shall constitute a quorum for the transaction of business, but if less than said number is present at a meeting a majority of the directors present 6 Exhibit T3B-57 may adjourn the meeting from time to time without further notice. 7. MANNER OF ACTING The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the directors. 8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the Board may be filled by a vote of a majority of the directors then in office, although less than a quorum exists. A director elected to fill a vacancy caused by resignation, death or removal, shall be elected to hold office for the unexpired term of his predecessor. 9. REMOVAL OF DIRECTORS Any or all of the directors may be removed for cause by vote of the stockholders or by action of the Board. Directors may be removed without cause only by action of the stockholders. 10. RESIGNATION A director may resign at any time by giving written notice to the Board, the President or the Secretary of the corporation. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the Board, and the acceptance of the resignation shall not be necessary to make it effective. 11. COMPENSATION The directors may be paid their expenses of attendance at each meeting of the Board of Directors or Committee thereof and may be paid a fixed sum for attendance at each such meeting or a stated salary or fee as a director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation thereof. 12. PRESUMPTION OF ASSENT 7 Exhibit T3B-57 A director of the corporation who is present at a meeting of the directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the corporation immediately-after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. 13. COMMITTEES A. Executive Committee. The Board of Directors may appoint from among its members an Executive Committee of not less than two (2) nor more than seven (7) members, one of whom shall be the President, and shall designate one or more of its members as alternates to serve as a member or members of the Executive Committee in the absence of a regular member or members. The Board of Directors reserves to itself alone the power to approve an amendment to the Articles of Incorporation; approve a plan of merger or consolidation; approve a plan or exchange under which the corporation would be acquired; approve the sale, lease or exchange or the mortgage or pledge for consideration other than money of all or substantially all of the property and assets of the corporation other than in the regular course of business; approve the voluntary dissolution of the Company or revocation of voluntary dissolution proceedings. Subject to the foregoing limitations, the Executive Committee shall possess and exercise all other power of the Board of Directors during the intervals between meetings. B. Other Committees. The Board of Directors may appoint such other Committees from among its members as the Board desires. All such Committees shall serve at the pleasure of the Board and shall have such duties, powers and responsibilities as set forth in the resolution establishing same. 14. ALTERNATIVE METHODS OF CONDUCTING BUSINESS 8 Exhibit T3B-57 A. Action by Consent of Board without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any Committee thereof may be taken without a meeting if all members of the Board or Committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or Committee. B. Participation Through Usage of Teleconferencing Equipment. Members of the Board of Directors or any Committee designated thereby may participate in a meeting of such Board or Committee by means of a conference telephone or television or similar communications equipment whereby all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting. When such meeting is conducted by means of a conference telephone, television or similar communications equipment, a written record shall be made of the action(s) taken at such meeting. ARTICLE IV - OFFICERS 1. NUMBER The officers of the corporation shall be a President, one or more Executive Vice Presidents, one or more Vice Presidents, a Secretary and a Treasurer, each of whom shall be elected by the directors. Such other officers and assistant officers as may be deemed necessary may be elected or appointed by the directors. 2. ELECTION AND TERM OF OFFICE The officers of the corporation to be elected by the directors shall be elected annually at the first meeting of the Board of Directors held after each annual meeting of the stockholders. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. 9 Exhibit T3B-57 3. REMOVAL Any officer or agent elected or appointed by the directors may be removed by the directors whenever, in their judgment, the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. 4. VACANCIES A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the directors for the unexpired portion of the term. 5. CHAIRMAN The Chairman of the Board of Directors shall be the Chief Executive Officer of the corporation and, subject to the directors, shall in general supervise and control all of the business and affairs of the corporation. He shall, when present, preside at all meetings of the stockholders and of the directors. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of- the corporation, any deeds, mortgages, bonds, contracts, or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the directors or by these Bylaws to some other officer of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of Chairman and such other duties as may be proscribed by the directors from time to time. The Chairman shall have the authority to remove any corporate officer from office when, in his sole discretion, the removal would be in the best interests of the corporation. 6. PRESIDENT The President shall be the Chief Operating Officer of the corporation and, subject to the directors and the Chief Executive Officer, shall in general supervise and control all of the business operations of the corporation. He may sign with the Secretary or any other proper officer of the corporation thereunto authorized by the directors, certificates for shares of the corporation, any deeds, 10 Exhibit T3B-57 mortgages, bonds, contracts or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the directors or by these Bylaws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of President and such other duties as may be prescribed by the directors from time to time. 7. EXECUTIVE VICE PRESIDENT In the absence of the President or in the event of his death, inability or refusal to act, an Executive Vice President shall perform the duties of the President, and when so acting, shall have all the power of and be subject to all the restrictions upon the President. The Executive Vice President shall perform such other duties as from time to time may be assigned to him by the President or directors. 8. VICE PRESIDENT The Vice President shall be elected by the Board of Directors and serve at their request. The Vice President shall perform such duties as shall be designated by the Board of Directors or the President and shall report to the President unless he designates another officer or Committee to receive said reports. 9. SECRETARY The Secretary shall keep the minutes of the stockholders and of the directors' meetings in one or more books provided for that purpose, see that all notices are duly given in accordance with the provisions of these Bylaws and keep a register of the post office address of each stockholder which shall be furnished to the Secretary by such stockholder, have general charge of the stock transfer books of the corporation and in general perform all duties incident to the office of the Secretary and such other duties as from time to time may be assigned to him by the President or by the directors. One or more assistant secretaries may be appointed by the Board of Directors to execute duties incident to the Office of Secretary in the absence of the Secretary. 11 Exhibit T3B-57 10. TREASURER If required by the directors, the Treasurer shall give a bond for the faithful discharge of his duties in such sum and with surety or sureties as the directors shall determine. He shall have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for monies due and payable to the corporation from any source whatsoever, and deposit all such monies in the name of the corporation in such bank, trust companies or other depositories as shall be selected in accordance with these Bylaws and in general perform all of the duties incident to the office of the Treasurer and such other duties as from time to time may be assigned to him by the President or by the directors. 11. SALARIES The salaries of the officers shall be fixed from time to time by the directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. 12 Exhibit T3B-57 ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS 1. CONTRACTS The directors may authorize any officer of officers, agent or agents to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. 2. LOANS' No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the directors or in accordance with policy adopted from time-to-time or authority delegated by the Board of Directors. 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the directors. 4. DEPOSITS All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositories as the directors may select. 5. EXERCISE OF RIGHTS AS STOCKHOLDER Unless otherwise ordered by the Board of Directors, the Chairman of the Board, President, Secretary, or a Vice President thereunto duly authorized on behalf of the Company to attend and to vote at any meeting of stockholders of any corporation in which this Company may hold stock and may exercise on behalf of this company any and all of the rights and powers incident to the ownership of such stock at any such meeting, and shall have power and authority to execute and deliver proxies and consents on behalf of this Company of the rights and powers incident to 13 Exhibit T3B-57 the ownership of such stock. The Board of Directors, from time to time, may confer like powers upon any other person or persons. 6. FACSIMILE SIGNATURES Facsimile signatures of any officer or officers of the corporation may be used whenever and as authorized by the Board of Directors or a Committee therefore. 14 Exhibit T3B-57 ARTICLE VI - CERTIFICATES FOR SHARES AND TRANSFER 1. CERTIFICATES FOR SHARES Certificates representing shares of the corporation shall be in such form as shall be determined by the directors. Such certificates shall be signed by the Chainman or President and by the Secretary or Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified. The name and address of the stockholders, the number of shares and date of issue shall be entered on the stock transfer books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificates shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate, a new one may be issued therefore upon such terms and indemnity to the corporation as the directors may prescribe. 2. TRANSFER OF SHARES A. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto and cancel the old certificate; every such transfer shall be entered on the transfer book of the corporation which shall be kept at its principal office or at the office of a transfer agent appointed by the corporation. B. The corporation shall be entitled to treat the holder of record of any shares as the holder in fact thereof, and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person whether or not it shall have express or other notice thereof, except as expressly provided by the laws of this state. ARTICLE VII - FISCAL YEAR The Fiscal Year of the corporation shall begin on the first day of January in each year. 15 Exhibit T3B-57 ARTICLE VIII - DIVIDENDS The directors may from time to time declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law. ARTICLE IX - CORPORATE RECORDS 1. INSPECTION OF RECORDS BY SHAREHOLDERS The share register, or duplicate share register, shall be open to inspection by a shareholder upon proper written request for a purpose reasonably related to his interests as a shareholder. Such inspection by a shareholder or holder of a voting trust certificate may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. Shareholders acting pursuant to this provision shall request inspection by writing to the President or Secretary of the corporation, specifying the purpose for such inspection under oath, and sending a copy of such request to the corporation's General Counsel. 2. INSPECTION OF RECORDS BY DIRECTORS Every director shall have the right at any reasonable time to inspect all books, records, documents of every kind, and the physical properties of the corporation, and also of its subsidiary corporations, domestic or foreign. Such a right must be reasonably related, as determined by a majority of the Board of Directors then in office to the director's position and responsibilities as a director of the corporation. Such inspection by a director may be made in person or by agent or attorney, and the right of inspection includes the right to make extracts. ARTICLE X - SEAL The directors may provide for a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation, the state of incorporation, and the year of incorporation. 16 Exhibit T3B-57 ARTICLE XI - WAIVER OF NOTICE Unless otherwise provided by law, whenever any notice is required to be given to any stockholder or director of the corporation under the provisions of these Bylaws or under the provisions of the Certificate of Incorporation, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XII - AMENDMENTS A. These Bylaws may be altered, amended, or repealed, and new Bylaws may be adopted by a vote, of the stockholders representing a majority of all the shares issued and outstanding, at any annual stockholders' meeting or at any special stockholders' meeting when the proposed amendment has been set out in the notice of such meeting or by written consent signed by all stockholders of record. B. These Bylaws may be altered, amended or repealed and new Bylaws adopted without shareholder approval by the affirmative vote of a majority of the Board of directors provided, however, that the Board shall not have the power to alter, amend or repeal any Bylaw adopted by the shareholders pursuant to paragraph A above of said Bylaws, if such Bylaw, when adopted, contains a clause therein that it may not be altered, amended, or repealed by the Board of Directors. ARTICLE XIII - INDEMNIFICATION A. Action, etc. Other Than by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including 17 Exhibit T3B-57 attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe' his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be `in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful. B. Actions, etc. by or in the Right of the Corporation. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or, completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that be is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of this duty to the corporation unless and only to the extent that the court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability by in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other such court shall deem proper. 18 Exhibit T3B-57 C. Determination of Indemnification. Any indemnification under items A or B (unless ordered by a court) shall be made by the corporation unless a determination is reasonably and promptly made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, if a quorum of disinterested directors so directs, by independent legal counsel in written opinion, or (iii) by the stockholders, that such person acted in. bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or bad reasonable cause to believe that his conduct was unlawful. D. Indemnification Against Expenses of Successful Party. Notwithstanding the other provisions of this Article, to the extent that an agent of the corporation has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any proceeding or in defense of any claim, issue or matter therein, such agent shall be indemnified against all expenses incurred in connection therewith. E. Advances of Expenses. Except as limited by item F of this Article, expenses incurred in any proceeding shall be paid by the corporation in advance of the final disposition of such proceeding, if the agent shall undertake to repay such amount in the event that it is ultimately determined, as provided herein, that such person is not entitled to indemnification. Notwithstanding the foregoing, no advance shall be made by the corporation if a determination is reasonably and promptly made by the Board of Directors by a majority vote of quorum of disinterested directors, or (if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs) by independent legal counsel in a written opinion, that, based upon the facts known to the Board or counsel at the time such determination is made, such person acted in bad faith and in a manner that such person did not believe to be in or not 19 Exhibit T3B-57 opposed to the best interests of the corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be. made in instances where the Board or Independent legal counsel reasonably determines that such person deliberately breached his duty to the corporation or its shareholders. F. Right of Agent to Indemnification Upon Application; Procedure Upon Application. Any indemnification under items B, C, and D, or advance under item B of, this Article, shall be made promptly, and in any event within ninety days, upon the written request of the agent, unless with respect to applications under items B,C, or E, a determination is reasonably and promptly made by the Board of Directors by a majority vote or a quorum of disinterested directors that such agent acted in a manner set forth in such items as to justify the corporation's not indemnifying or making an advance to the agent In the event no quorum of disinterested directors is obtainable, the Board of Directors shall promptly direct that independent legal counsel shall decide whether the agent acted in the manner set forth in such Sections as to justify the corporation's not indemnifying or making an advance to the agent The right to indemnification or advances as granted by this Article shall be enforceable by the agent in any court of competent jurisdiction, if the Board or independent legal counsel, denies the claim, in whole or in part, or if no disposition of such claim is made within ninety days. The agent's expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the corporation. G. Other Rights and Remedies. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, 20 Exhibit T3B-57 employee, or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. All rights to indemnification under this Article shall be deemed to be provided by a contract between the corporation and the director, officer, employee or agent who serves in such capacity at any time while these Bylaws and other relevant provisions of the general corporation law and other applicable law, if any, are in effect Any repeal or modification thereof shall not affect any rights or obligations then existing. H. Insurance. Upon resolution passed by the Board, the corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article. I. Constituent Corporations. For the purposes of this Article, references to the "the corporation" shall include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would if be had served the resulting or surviving corporation in the same capacity. 21 Exhibit T3B-57 J. Other Enterprises, Fines, and Serving at Corporation's Request. For the purposes of this Article, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; any person who' acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Article. K. Savings Cause. If this Article or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each agent of the corporation as to expenses (including attorneys' fees), judgments, fines and amounts paid in a settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including a grand jury proceeding and an action by the corporation, to the full extent permitted by any applicable portion of this Article that shall not have been invalidated or by any other applicable law. 22 EX-99.T3B58 136 exhibit_t3b-58.txt Exhibit T3B-58 OGDEN MARTIN SYSTEMS, INC. * * * * * BY - LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in the City of New York, State of New York, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. 1 Section 2. Annual meetings of stockholders, commencing with the year 1983, shall be held on the first day of May if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 A.M., or at such other date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the 2 meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purpose of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 3 Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in 4 which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. 5 ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the 6 right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as 7 shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on two days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board one-third of the total number of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other 8 than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or 9 more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. 10 Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. 11 ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or 12 more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and 13 active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation 14 and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 15 THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. 16 Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election, shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATE OF STOCK Section 1. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. Section 2. Any of or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect 17 as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person 18 entitled thereto, cancel the old certificate and record the transaction upon its books. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a 19 person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 20 ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by 21 the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 22 OGDEN MARTIN SYSTEMS, INC. Action by Unanimous Consent in Writing of the Board of Directors July 2, 1984 The undersigned, constituting the entire Board of Directors of Ogden Martin Systems, Inc., a Delaware corporation, by unanimous consent in writing pursuant to the authority of Section 141(f) of the General Corporation Law of Delaware without the formality of convening a meeting, do hereby severally and collectively consent to the following action by the Corporation: RESOLVED, that Article V, Section 1 of the By-laws be amended to delete the office of chairman of the board and that Article V, Section 6 of the By-laws be deleted in its entirety. /s/ Ralph E. Ablon /s/ Donald A. Krenz - ----------------------- -------------------- RALPH E. ABLON DONALD A. KRENZ /s/ Peter Thorner /s/ Robert E. Curry - ------------------------ ------------------------------ PETER THORNER ROBERT E. CURRY, JR. /s/ David L. Sokol ----------------------- DAVID L. SOKOL 23 OGDEN MARTIN SYSTEMS, INC. Action by Unanimous Consent in Writing of the Sole Shareholder February 1, 1985 The undersigned, constituting the holder of all the outstanding shares of Ogden Martin Systems, Inc., a Delaware Corporation, by unanimous consent in writing pursuant to the authority of Section 228 of the General Corporation Law of Delaware, without the formality of convening a meeting, do hereby severally and collectively, consent to the following actions by the Corporation: RESOLVED, that Article III, Section 1 of the By-Laws of this Corporation be and hereby are amended to change the number of Directors from "five" to "not less than three nor more than five," and it is FURTHER RESOLVED, that the following persons be and are hereby elected Directors of this Corporation to serve until the next annual meeting of shareholders and their successors are duly elected and qualified to serve: Ralph E. Ablon Donald A. Krenz Peter Thorner Robert E. Curry, Jr. David L. Sokol OGDEN PROJECTS, INC. By: /s/ Bruce W. Stove ----------------------- 24 OGDEN MARTIN SYSTEMS, INC. Action by Unanimous Consent in Writing of the Sole Shareholder in Lieu of the 1987 Annual Meeting January 19, 1987 The undersigned, constituting the holder of all the outstanding shares of Ogden Martin Systems, Inc., a Delaware corporation, by unanimous consent in writing pursuant to the authority of Section 228 of the Delaware General Corporation Law, without the formality of convening a meeting, does hereby consent to the following actions by the Corporation: RESOLVED, that the following persons be and are hereby elected Directors of this Corporation to serve until the next annual meeting of shareholders and their successors are duly elected and qualified to serve: Ralph E. Ablon David L. Sokol Albert O. Cornelison, Jr. Robert N. DiGia Salvatore Ferrara and it is further RESOLVED, that the appropriate section of this Corporation's By-Laws is hereby amended and restated in its entirety to read as follows: "The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director, officer, employee or agent of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer, employee 25 or agent against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any and all expenses (including attorneys' fees) incurred by any such person in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses if it shall ultimately be determined by a final (judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation."; and it is further RESOLVED, that the officers of this Corporation and each of them be and they hereby are authorized to 26 execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN PROJECTS, INC. By:/s/ J.L. Effinger ----------------------------- J.L. Effinger Assistant Secretary 27 OGDEN MARTIN SYSTEMS, INC. Action by Unanimous Consent in Writing of the Board of Directors November 26, 1990 The undersigned, constituting the entire Board of Directors of Ogden Martin Systems, Inc., a Delaware corporation, by unanimous consent in writing pursuant to the authority of Section 141 (f) of the Delaware General Corporation Law, without the formality of convening a meeting, do hereby severally and collectively consent to the following action by the Corporation: RESOLVED, that effective as of November 1, 1990, Sections 1 and 2 of Article V of the By-Laws of this Corporation be and hereby are amended to be and read in their entirety as follows: "Section 1. The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board of Directors may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these By-Laws otherwise provide. Section 2. The Board of Directors at its first meeting after each annual meeting of stockholders shall 28 choose a Chairman of the Board and Chief Executive Officer, one or more Presidents, one or more Vice Presidents, a Secretary and a Treasurer." and it is further RESOLVED, that effective as of November 1, 1990, the By-Laws of this Corporation be and hereby are amended to provide for a Section 6. of Article V pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of November 1, 1990, Section 7. of Article V of the By-Laws of this Corporation be and hereby is amended to be and read in its entirety as follows: THE PRESIDENT AND CHIEF OPERATING OFFICER Section 7. The President and Chief Operating Officer shall, subject to the control of the Board, 29 have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of November 1, 1990, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of this Corporation; and it is further RESOLVED, that effective as of November 1, 1990, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of this Corporation; and it is further RESOLVED, that effective as of November 1, 1990, J. L. Effinger be and hereby is elected Assistant Secretary of this corporation; and it is further RESOLVED, that any and all actions taken from November 1, 1990, on behalf of the Corporation by the foregoing individuals in their capacities as set forth hereinabove are hereby ratified, confirmed, and adopted in all respects; and it is further RESOLVED, that the officers of this Corporation and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. Ablon /s/ Scott G. Mackin - ------------------------------- --------------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ Bruce W. Stone ------------------------- BRUCE W. STONE 30 EX-99.T3B59 137 exhibit_t3b-59.txt Exhibit T3B-59 OGDEN WALLINGFORD ASSOCIATES, INC. ***** BY-LAWS ***** ARTICLE I Section 1. The principal office shall be located in Hartford, Connecticut. Section 2. The corporation may also have offices at such other places both within and without the State of Connecticut as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held at such place, either within or without the State of Connecticut, as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as may be determined by the board of directors, if not a legal holiday, and if a legal holiday, then on the next secular day following, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice of the annual meeting stating the place, day and hour of the meeting shall be delivered not less than seven nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Connecticut as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of shareholders may be called at any time, for any purpose or purposes, by the board of directors or by such other persons as may be authorized by law. Section 3. Written or printed notice of a special meeting stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered not less than seven nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer 2 or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of 3 a greater number of shares of stock is required by law or the certificate of incorporation. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Section 4. Any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE V DIRECTORS Section 1. The number of directors shall be five. Directors need not be residents of the State of Connecticut nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. 4 Section 2. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors. A director elected to fill a vacancy shall be elected for the unexpired portion of the term of his predecessor in office. Any vacancy created by an increase in the number of directorships shall be filled for the unexpired term by action of shareholders. Any other vacancy may be filled for the unexpired term by action of the sole remaining director in office or by unanimous written consent of all the directors without a meeting or at a meeting of the board of directors by the concurring vote of a majority of the remaining directors in office, though such remaining directors are less than a quorum, though the number of directors at the meeting is less than a quorum and though such majority is less than a quorum. A director elected to fill a newly created directorship shall serve until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualified. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of 5 incorporation or by these by-laws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of Connecticut, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of Connecticut. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such 6 place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the, board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the certificate of incorporation. The act of a majority of the directors present at 7 any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the by-laws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of 8 directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on, the records `of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the `provisions of the certificate of incorporation or these by-laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. 9 ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. 10 THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and 11 record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 12 THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to, the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the ,president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession' or under his control belonging to the corporation. 13 Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the president or a vice- president and the secretary or an assistant secretary or the treasurer or an assistant treasurer of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full or summary statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and 14 preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers of the corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. 15 TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. CLOSING OF TRANSFER BOOKS Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, seventy days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days, immediately preceding such meeting. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than seventy days and, in case of a meeting of shareholders, not less 16 than ten days prior to the date on which the particular action requiring such determination of shareholders is to be taken. If the stock transfer books are not closed and no record date is fixed, the determination of shareholders entitled to notice of or to vote at a meeting, or to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the board of directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Connecticut. 17 LIST OF SHAREHOLDERS Section 7. The officer or agent having charge of the transfer books for shares shall make, at least five days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order, with the address of each and the number of shares held by each, which list, for a period of five days prior to such meeting, shall be kept on file at the principal office of the corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original share ledger or transfer book, or a duplicate thereof, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book or to vote at any meeting of the shareholders. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the certificate of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, 18 in property or in shares of the capital stock, subject to any provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Connecticut". The 19 seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted (a) at any regular or special meeting of shareholders at which a quorum is present or represented, by the affirmative vote of a majority of the stock entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting, or (b) by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board. 20 Exhibit T3B-59 BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990 The undersigned, constituting the holder of all the outstanding shares of the corporations listed on Exhibits A, B, and C attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit A hereto be amended to change the number of directors of each corporation to "not less than three nor more than five"; and it is further RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit B hereto be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of each of the corporations listed on Exhibit C hereto to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott G. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN PROJECTS, INC. By: /s/ Scott G. Mackin --------------------------- Scott G. Mackin First Executive Vice President 22 Exhibit T3B-59 EXHIBIT A Ogden Projects. of Wallingford, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Exhibit T3B-59 EXHIBIT B Ogden Projects Of Anaheim, Inc. Ogden Projects of Haverhill, Inc. Exhibit T3B-59 EXHIBIT C Ogden Environmental Services, Inc. Ogden Land Management, Inc. Ogden Projects of Anaheim, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Projects of Wallingford, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Martin Systems, Inc. Ogden Recycling Systems, Inc. Exhibit T3B-59 BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority, of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President all be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. Richard Ablon /s/ Scott G. Mackin - ---------------------------- ------------------------------- R. Richard Ablon Scott G. Mackin /s/ Bruce W. Stone ------------------------------ Bruce W. Stone Exhibit T3B-59 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. Exhibit T3B-59 EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EX-99.T3B60 138 exhibit_t3b-60.txt Exhibit T3B-60 BYLAWS OF OGDEN WASTE TO ENERGY, INC. (a Delaware corporation) ------------------- ARTICLE I STOCKHOLDERS 1. CERTIFICATES REPRESENTING STOCK. Certificates representing stock in the corporation shall be signed by, or in the name of, the corporation by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the President or a Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the corporation. Any or all the signatures on any such certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue. Whenever the corporation shall be authorized to issue more than one class of stock or more than one series of any class of stock, and whenever the corporation shall issue any shares of its stock as partly paid stock, the certificates representing shares of any such class or series or of any such partly paid stock shall set forth thereon the statements prescribed by the General Corporation Law. Any restrictions on the transfer or registration of transfer of any shares of stock of any class or series shall be noted conspicuously on the certificate representing suck shares. The corporation may issue a new certificate of stock or uncertificated shares in place of any certificate theretofore issued by it, alleged to have been lost, stolen, or destroyed, and the Board of Directors may require the owner of the lost, stolen, or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss, theft, or destruction of any such certificate or the issuance of any such new certificate or uncertificated shares. 2. UNCERTIFICATED SHARES. Subject to any conditions imposed by the General Corporation Law, the Board of Directors of the corporation may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the corporation shall be uncertificated shares. Within a reasonable time after the issuance or transfer of any uncertificated shares, the corporation shall send to the registered owner thereof any written notice prescribed by the General Corporation Law. 3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be required to, issue fractions of a share. If the corporation does not issue fractions of a share, it shall (1) arrange for the disposition of fractional interests by those entitled thereto, (2) pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or (3) issue scrip or warrants in registered form (either represented by a certificate or uncertificated) or bearer form (represented by a certificate) which shall entitle the holder to receive a full share upon the surrender of such scrip or warrants aggregating a full share. A certificate for a fractional share or an uncertificated fractional share shall, but scrip or warrants shall not unless otherwise provided therein, entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any of the assets of the corporation in the event of liquidation. The Board of Directors may cause scrip or warrants to be issued subject to the conditions that they shall become void if not exchanged for certificates representing the full shares or uncertificated full shares before a specified date, or subject to the conditions that the shares for which scrip or warrants are exchangeable may be sold by the corporation and the proceeds thereof distributed to the holders of scrip or warrants, or subject to any other conditions which the Board of Directors may impose. 4. STOCK TRANSFERS. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, transfers or registration of transfers of shares of stock of the corporation shall be made only on the stock ledger of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and, in the case of shares represented by certificates, on surrender of the certificate or certificates for such shares of stock properly endorsed and the payment of all taxes due thereon. 5. RECORD DATE FOR STOCKHOLDERS. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the thy on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the-record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining the stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by the General Corporation Law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to its registered office in 2 the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the General Corporation Law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the thy on which the Board of Directors adopts the resolution taking such prior action. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. 6. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a meeting of stockholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term "share" or "shares" or "share of stock" or "shares of stock" or "stockholder" or "stockholders" refers to an outstanding share or shares of stock and to a holder or holders of record of outstanding shares of stock when the corporation is authorized to issue only one class of shares of stock, and said reference is also intended to include any outstanding share or shares of stock and any holder or holders of record of outstanding shares of stock of any class upon which or upon whom the certificate of incorporation confers such rights where there are two or more classes or series of shares of stock or upon which or upon whom the General Corporation Law confers such rights notwithstanding that the certificate of incorporation may provide for more than one class or series of shares of stock, one or more of which are limited or denied such rights thereunder; provided, however, that no such right shall vest in the event of an increase or a decrease in the authorized number of shares of stock of any class or series which is otherwise denied voting rights under the provisions of the certificate of incorporation, except as any provision of law may otherwise require. 7. STOCKHOLDER MEETINGS. - TIME. The annual meeting shall be held on the date and at the time fixed, from time to time, by the directors, provided, that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. A special meeting shall be held on the date and at the time fixed by the directors. - PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of Delaware, as the directors may, from time to time, fix. Whenever the directors shall fail to' fix such place, the meeting shall be held at the registered office of the corporation in the State of Delaware. 3 - CALL. Annual meetings and special meetings may be called by the directors or by any officer, instructed by the directors to call the meeting. - NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be given, stating the place, date, and hour of the meeting and stating the place within the city or other municipality or community at which the list of stockholders of the corporation may be examined. The notice of an annual meeting shall state that the meeting is called for the election of directors and for the, transaction of other business which may properly come before the meeting, and shall (if any other action which could be taken at a special meeting is to be taken at such annual meeting) state the purpose or purposes. The notice of a special meeting shall in all instances state the purpose or purposes for which the meeting is called. The notice of any meeting shall also include, or be accompanied by, any additional statements, information, or documents prescribed by the General Corporation Law. Except as otherwise provided by the General Corporation Law, a copy of the notice of any meeting shall be given, personally or by mail, not less than ten days nor more than sixty days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived, and directed to each stockholder at his record address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage thereon prepaid, in the United States Mail. If a meeting is adjourned to another time, not more than thirty days hence, and/or to another place, and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give notice' of the adjourned meeting unless the directors, after adjournment, fix a new record date for the adjourned meeting. Notice need not be given to any stockholder who submits a written waiver of notice signed by him before or after the time stated therein. Attendance of a stockholder at a meeting of stockholders shall constitute a waiver of notice of such meeting, except when the stockholder attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice. - STOCKHOLDER LIST. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city or other municipality or community where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the corporation, or to vote at any meeting of stockholders. - CONDUCT OF MEETING. Meetings of the, stockholders shall be presided over by one of the following officers in the order of seniority and if present and acting - the 4 Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, a Vice-President, or, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the stockholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the Chairman of the meeting shall appoint a secretary of the meeting. - PROXY REPRESENTATION. Every stockholder may authorize another person or persons to act for him by proxy in all matters in which a stockholder is entitled to participate, whether by waiving notice of any meeting, voting or participating at a meeting, or expressing consent or dissent without a meeting. Every proxy must be signed by the stockholder or by his attorney-in-fact. No proxy shall be voted or acted upon after three years from its date unless such proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and, if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. - INSPECTORS. The directors, in advance of any meeting, may, but need not, appoint one or more inspectors of election to act at the meeting or any adjournment thereof. If an inspector or inspectors are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspectors at such meeting with strict impartiality and according to the best of his ability. The inspectors, if any, shall determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots, or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots, or consents, determine the result, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the inspector or inspectors, if any, shall make a report in writing of any challenge, question, or matter determined by him or them and execute a certificate of any fact found by him or them. Except as otherwise required by subsection (e) of Section 231 of the General Corporation Law, the provisions of that Section shall not apply to the corporation. - OUORUM. The holders of a majority of the outstanding shares of stock shall constitute a quorum at a meeting of stockholders for the transaction of any business. The stockholders present may adjourn the meeting despite the absence of a quorum. - VOTING. Each share of stock shall entitle the holder thereof to one vote. Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a majority of the votes cast except where the General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power, and except 5 as may be otherwise prescribed by the provisions of the certificate of incorporation ad these Bylaws. In the election of directors, and for any other action, voting need not be by ballot. 8. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the General Corporation Law to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. ARTICLE II DIRECTORS 1. FUNCTIONS AND DEFINITION. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors of the corporation. The Board of Directors shall have the authority to fix the compensation of the members thereof. The use of the phrase "whole board" herein refers to the total number of directors which the corporation would have if there were no vacancies. 2. OUALIFICATIONS AND NUMBER. A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware. The initial Board of Directors shall consist of three persons. Thereafter the number of directors constituting the whole board shall be at least one. Subject to the foregoing limitation and except for the first Board of Directors, such number may be fixed from time to time by action of the stockholders or of the directors, or, if the number is not fixed, the number shall be three. The number of directors may be increased or decreased by action of the stockholders or of the directors. 3. ELECTION AND TERM. The first Board of Directors, unless the members thereof shall have been named in the certificate of incorporation, shall be elected by the incorporator or incorporators and shall hold office until the first annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. Thereafter, directors who are elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal. Except as the General Corporation Law may otherwise require, in the interim between annual meetings of stockholders or of special meetings of stockholders called for the election of directors and/or for the removal of one or more directors and for the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for cause or 6 without cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole remaining director. 4. MEETINGS. - TIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble. - PLACE. Meetings shall be held at such place within or without the State of Delaware as shall be fixed by the Board. - CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, of the President, or of a majority of the directors in office. - NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. Notice need not be given to any director or to any member of a committee of directors who submits a written waiver of notice signed by him before or after the time stated therein. Attendance of any such person at a meeting shall constitute a waiver of notice of such meeting, except when he attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors need be specified in any written waiver of notice. - QUORUM AND ACTION. A majority of the whole Board shall constitute a quorum except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum, provided, that such majority shall constitute at least one-third of the whole Board. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as herein otherwise provided, and except as otherwise provided by the General Corporation Law, the vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board. The quorum and voting provisions herein stated shall not be construed as conflicting with any provisions of the General Corporation Law and these Bylaws which govern a meeting of directors held to fill vacancies and newly created directorships in the Board or action of disinterested directors. Any member or members of the Board of Directors or of any committee designated by the Board, may participate in a meeting of the Board, or any such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. 7 - CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present and acting, shall preside at all meetings. Otherwise, the Vice-Chairman of the Board, if any and if present and acting, or the President, if present and acting, or any other director chosen by the Board, shall preside. 5. REMOVAL OF DIRECTORS. Except as may otherwise be provided by the General Corporation Law, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then' entitled to vote at an election of directors. 6. COMMITTEES. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of any such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation with the exception of any authority the delegation of which is prohibited by Section 141 of the General Corporation Law, and may authorize the seal of the corporation to be affixed to all papers which may require it. 7. WRITTEN ACTION. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. ARTICLE III OFFICERS The officers of the corporation shall consist of a President, a Secretary, a Treasurer, and, if deemed necessary, expedient, or desirable by the Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board, an Executive Vice-President, one or more other Vice-Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers with such titles as the resolution of the Board of Directors choosing them shall designate. Except as may otherwise be provided in the resolution of the Board of Directors choosing him, no officer other than the Chairman or Vice-Chairman of the Board, if any, need be a director. Any number of offices may be held by the same person, as the directors may determine. Unless otherwise provided in the resolution choosing him, each officer shall be chosen for a term which shall continue until the meeting of the Board of Directors following the next annual meeting of stockholders and until his successor shall have been chosen and qualified. 8 All officers of the corporation shall have such authority and perform such duties in the management and operation of the corporation as shall be prescribed in the resolutions of the Board of Directors designating and choosing such officers and prescribing their authority and duties, and shall have such additional authority and duties as are incident to their office except to the extent that such resolutions may be inconsistent therewith. The Secretary or an Assistant Secretary of the corporation shall record all of the proceedings of all meetings and actions in writing of stockholders, directors, and committees of directors, and shall exercise such additional authority and perform such additional duties as the Board shall assign to him. Any officer may be removed, with or without cause, by the Board of Directors. Any vacancy in any office may be filled by the Board of Directors. ARTICLE IV CORPORATE SEAL The corporate seal shall be in such form as the Board of Directors shall prescribe. ARTICLE V FISCAL YEAR The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board of Directors. ARTICLE VI CONTROL OVER BYLAWS Subject to the provisions of the certificate of incorporation and the provisions of the General Corporation Law, the power to amend, alter, or repeal these Bylaws and to adopt new Bylaws may be exercised by the Board of Directors or by the stockholders. I HEREBY CERTIFY that the foregoing is a full, true, and correct copy of the Bylaws of OGDEN WASTE TO ENERGY, INC., a Delaware corporation, as in effect on the date hereof. Dated: __________________________________ Secretary of OGDEN WASTE TO ENERGY, INC. (SEAL) 9 EX-99.T3B61 139 exhibit_t3b-61.txt Exhibit T3B-61 OGDEN WATER HOLDINGS, INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in the City of Fairfield, State of New Jersey, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be at such date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board 1 Exhibit T3B-61 of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. 2 Exhibit T3B-61 Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than 10 nor more than 60 days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the 3 Exhibit T3B-61 certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares, entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than 3 nor more than 5. The first board shall consist of 3 directors. Thereafter, within the limits above specified, the number of 4 Exhibit T3B-61 directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. 5 Exhibit T3B-61 MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on 10 days' notice to each director, either personally or by mail or by facsimile communication; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. 6 Exhibit T3B-61 Section 8. At all meetings of the board a majority of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate 7 Exhibit T3B-61 one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a 8 Exhibit T3B-61 dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, 9 Exhibit T3B-61 by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by facsimile telecommunication. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. 10 Exhibit T3B-61 Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the 11 Exhibit T3B-61 corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 10. The vice-president, or if there shall be more than one, the vice-presidents in order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the 12 Exhibit T3B-61 corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. 13 Exhibit T3B-61 Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the 14 Exhibit T3B-61 corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. 15 Exhibit T3B-61 TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that board of directors may fix a new record date for the adjourned meeting. 16 Exhibit T3B-61 REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 17 Exhibit T3B-61 ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS 18 Exhibit T3B-61 Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 19 EX-99.T3B62 140 exhibit_t3b-62.txt Exhibit T3B-59 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. Exhibit T3B-59 EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. EX-99.T3B63 141 exhibit_t3b-63.txt Exhibit T3B-63 EXHIBIT B OGDEN WATER TREATMENT SUPPORT SERVICES, INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Dover, County of Kent, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section l. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Exhibit T3B-63 Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at, the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Exhibit T3B-63 Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. ` If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each, stockholder or record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one Exhibit T3B-63 upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of' incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall not be less than three nor more than six, The first board shall consist of four directors. Exhibit T3B-63 Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which `may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the Exhibit T3B-63 certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OP DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of, two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Exhibit T3B-63 Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by--laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by--laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more Exhibit T3B-63 committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to , amending the certificate of incorporation, (except ,that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by -- laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or Exhibit T3B-63 committees shall have such name or names as may be determined from time to time by resolutions adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by- Exhibit T3B-63 laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by -- laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. The board of directors may also choose additional vice presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers Exhibit T3B-63 and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. In the absence, of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) Exhibit T3B-63 shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT' SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and Exhibit T3B-63 shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in Exhibit T3B-63 the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates, shall be signed by, or in the name of the corporation by, the chairman or vice -- chairman of the board of directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertified stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, ` preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before, such certificate is Exhibit T3B-63 issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares Exhibit T3B-63 such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall, apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on the books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares,. and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other Exhibit T3B-63 person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. Exhibit T3B-63 CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer, or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name Of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director, officer, employee or agent of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer, employee or agent against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any. and all expenses (including attorneys' fees) incurred by Exhibit T3B-63 any such person in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses if it shall ultimately be determined by a final judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent Corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation. Exhibit T3B-63 ARTICLE VII AMENDMENTS Section 1. These by -- laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new bylaws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by -- laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by -- laws. EX-99.T3B64 142 exhibit_t3b-64.txt Exhibit T3B-64 BY-LAWS of DSS ENVIRONMENTAL, INC. ARTICLE I Shareholders' Meetings Section 1. Annual Meeting. The annual meeting of the shareholders for the election of Directors and the transaction of any other business that may properly come before it shall be held at the principal office of the Corporation, or at such place within or without the State of New York as shall be set forth in the notice of meeting. The meeting shall be held on the first Monday during the month of December of each year at 11:00 in the morning, or at such date and time as shall be set forth in the notice of meeting, provided that at least one meeting is held per year. Section 2. Special Meeting. Special meetings of shareholders, other than those regulated by statute, may be called at any time by a majority of the Directors or the President, and must be called by the President upon written request of the holders of twenty-five percent of the outstanding shares entitled to vote at the special meeting. Section 3. Notice of Meetings. Written notice of the annual meeting stating the place, date and hour shall be given personally or by mail not less than ten nor more than fifty days before the date of the meeting to each shareholder entitled to vote at the meeting. Written notice of a special meeting stating the place, date and hour, and indicating that it is being issued by or at the direction of the person or persons calling the meeting, and stating the purpose or purposes for which the meeting is called, shall be given, personally or by mail, not less than ten nor more than fifty days before the date of the meeting to each shareholder entitled to vote at the meeting. At a special meeting no business other than that specified in the notice of meeting shall be transacted. If mailed, a notice shall be addressed to the address of the shareholder as it appears on the record of shareholders of the Corporation unless the shareholder shall have filed with the Secretary of the Corporation a written request that notices be mailed to a different address, in which case it shall be mailed to the address designated in the request. Notice of a meeting may be waived by a shareholder by submitting a signed waiver either before or after the meeting, or by attendance at the meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting. Section 4. Quorum and Adjournment. The presence, in person or by proxy, of the holders of a majority of the outstanding shares entitled to vote at a meeting of shareholders shall be necessary to constitute a quorum for the transaction of business. If, however, a quorum shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote at the meeting who are present in person or represented by proxy shall have the power to adjourn the meeting to a future date at which a quorum shall be present or represented. When a meeting is adjourned to another time or place, it shall not be necessary to give any notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken, and at the adjourned meeting any business may be transacted that might have been transacted on the original date of the meeting. Section 5. Voting. A shareholder entitled to vote at a meeting may vote at the meeting in person or by proxy. Every shareholder of preferred stock shall be entitled to one vote for each share standing in the shareholders name on the record of shareholders. All corporate action shall be determined by a vote of a majority of the votes cast at a meeting of shareholders by the holders of shares entitled to vote on the matter. Section 6. Proxies. Every proxy must be dated and signed by the shareholder or by the shareholder's attorney-in-fact. No proxy shall be valid after the expiration of eleven months from the date of its execution, unless the proxy provides otherwise. Every proxy shall be revocable at the pleasure of the shareholder executing it, except where an irrevocable proxy is permitted by statute. Section 7. Consent Without Meeting. Whenever by a provision of a statute, the Certificate of Incorporation, or these by-laws, the vote of shareholders is required or permitted to be taken at a shareholders meeting in connection with any corporate action, the meeting and the vote of shareholders may be dispensed with if all the shareholders who would have been entitled to vote upon the action if the meeting were held shall consent in writing to the corporate action being taken. ARTICLE II Directors Section 1. Number and Qualifications. The Board of Directors shall consist of no fewer than three Directors unless there are fewer than three shareholders, in which case the Board of Directors shall consist of no fewer than the same number of Directors as there are shareholders. In no event shall the Board of Directors consist of more than seven Directors. The shareholders shall set the number of Directors by resolution. The Directors need not be shareholders of the Corporation. The number of Directors may be increased or decreased by an amendment to the by-laws, or by action of the shareholders or of the Board under the specific provisions of a by-law adopted by the shareholders; however, any amendment or action by the Board to change the number of Directors shall require the vote of a majority of the entire Board. No decrease in the number of Directors shall shorten the term of an incumbent Director. Section 2. Election and Term. Each Director shall be elected at the annual meeting of shareholders by a plurality vote. The term of office shall be until the next annual meeting of shareholders or until the successor to the office has been elected. Section 3. Duties and Powers. The Board of Directors shall have control and management of the affairs and business of the Corporation. Except as otherwise provided in these by-laws, the Directors shall in all cases act as a board, regularly convened. In the transaction of business, the act of a majority present at a meeting except as otherwise provided by law or the Certificate of Incorporation shall be the act of the Board. The Directors may adopt rules and regulations for the conduct of their meetings and the management of the Corporation 2 which they deem proper and which are not inconsistent with the laws of the State of New York or these by-laws. Section 4. Meetings. The Board of Directors shall meet for the election or appointment of officers and for the transaction of any other business as soon as practicable after the adjournment of the annual meeting of the shareholders. Other regular meetings of the Board shall be held at such times as the Board may from time to time determine. Special meetings of the Board of Directors may be called by the President at any time. Upon the written request of any two Directors, the President must call a special meeting to be held not more than fifteen days after the receipt of the request. Section 5. Consent Without a Meeting. My action required or permitted to be taken by the Board of Directors or any Committee of the Board may be taken without a meeting if all members of the Board or the Committee consent in writing to the adoption of a resolution authorizing the action. The resolution and the written consent shall be filed with the minutes of the proceedings of the Board or the Committee. Section 6. Participation Without Physical Presence. Any one or more members of the Board or any Committee of the Board may participate in a meeting of such Board or Committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. Section 7. Notice of Meetings. Notice of regular or special meetings shall be served upon each Director in person or by mail addressed to the Director's last known post-office address, at least two days prior to the date of the meeting, specifying the time and place of the meeting. However, notice of a meeting need not be given to any Director who submits a signed waiver of notice whether before or after the meeting, or who attends the meeting without protesting, prior to or at the commencement of the meeting, the lack of notice to him or her. Section 8. Place of Meeting. The Board of Directors shall hold its meetings either within or without the State of New York at the place designated in the notice of the meeting. Section 9. Quorum. At any meeting of the Board of Directors, the presence of a majority of the Board shall be necessary to constitute a quorum for the transaction of business. However, should a quorum not be present, a lesser number may adjourn the meeting to some future time, not more than twenty days later. The vote of a majority of the Board of Directors present at the time of a vote shall be the act of the Board of Directors. Section 10. Committees. The Board of Directors may establish, by majority vote, executive and other committees to act on its behalf. These committees, which shall consist of three or more Directors (along with any alternate members selected by the Board), may be altered or disbanded by subsequent Board resolution. Committees established under this section may be authorized to act on behalf of the Board in any matter not specifically prohibited by New York State Business Corporation Law Section 712. 3 Section 11. Vacancies. Any vacancy occurring in the Board of Directors by death, resignation, increase in the number of Directors, removal without cause, or otherwise shall be filled after the occurrence of the vacancy by a majority vote of the remaining Directors or by unanimous written consent of the remaining Directors without a meeting. The Director thus chosen shall hold office until the next meeting of shareholders at which the election of directors is in the regular order of business, and until his successor has been elected and qualified. Section 12. Removal. My Director may be removed either with or without cause, at any time, by a vote of the shareholders holding a majority of the shares then issued and outstanding and who were entitled to vote for the election of the Director sought to be removed. Except as otherwise prescribed by statute, a Director may be removed for cause by a vote of a majority of the entire Board. Section 13. Resignation. My Director may resign from office at any time. A resignation shall be made in writing and delivered to the President, and shall take effect immediately without acceptance. ARTICLE III Officers Section 1. Officers and Qualifications. The officers of the Corporation shall be a President, one or more Vice-Presidents, at the option of the Board, a Secretary, a Treasurer, and such other officers as the Board of Directors may deem advisable. Any two offices, except the offices of President and Secretary, may be held by the same person. However, if all the issued and outstanding shares of the Corporation are owned by one person, that person may hold all or any combination of offices. Section 2. Election. All officers of the Corporation shall be elected annually by the Board of Directors at its meeting held as soon as practicable after the annual meeting of shareholders. Section 3. Term of Office. All officers shall hold office until their successors have been duly elected and have qualified, or until removed as provided in these by-laws. Section 4. Removal of Officers. Any officer may be removed either with or without cause by the vote of a majority of the Board of Directors. Section 5. Duties of Officers. The duties and powers of the officers of the corporation shall be as follows and as may be set from time to time by resolution of the Board of Directors. (a) The President shall: (i) preside at all meetings of the Board of Directors and shall also preside at all meetings of the shareholders; 4 (ii) present at each annual meeting of the shareholders and Directors a report of the condition of the business of the Corporation; (iii) cause to be called regular and special meetings of the shareholders and Directors in accordance with the requirements of New York statutes and of these by-laws; (iv) appoint, discharge, and fix the compensation of all employees and agents of the Corporation other than the duly elected officers, subject to the approval of the Board of Directors; (v) sign and execute all contracts in the name of the Corporation; (vi) sign all certificates representing shares; (vii) cause all books, reports, statements and certificates to be properly kept and filed as required by law; and (viii) enforce these by-laws and perform all duties incident to his office and which are required by law, and shall generally supervise and control the business and affairs of the Corporation. (b) If the Board provides for a Vice-President, the Vice-President shall, during the absence or incapacity of the President, perform the duties of the President, and when so acting, he shall have all the powers and be subject to all the responsibilities of the office of President, and shall perform such duties and functions as the Board may prescribe. If the Board provides for more than one Vice-President, it shall designate which Vice-President shall perform the President's duties during the President's absence or incapacity. Each of the Vice-Presidents shall perform such duties and functions as the Board may prescribe. (c) The Secretary shall: (i) keep the minutes of the special meetings of the Board of Directors and of the shareholders in appropriate books; (ii) give or cause to be given notice of meetings of the Board of Directors and of all the meetings of the shareholders of the Corporation; (iii) be custodian of the records and seal of the Corporation, and shall affix the seal to the certificates representing shares and other corporate papers when required; (iv) keep accurate and complete records of the ownership of shares of the Corporation; 5 (v) sign all certificates representing shares and affix the corporate seal; (vi) present to the Board of Directors at their meetings all official communications received by the Secretary's office; and (vii) perform all duties incident to the office of Secretary of the Corporation. (d) The Treasurer shall: (i) have the care and custody of and be responsible for all the funds and securities of the Corporation, and shall deposit these funds and securities in the name of the Corporation in banks or safe-deposit companies designated by the Board of Directors; (ii) make, sign, and endorse in the name of the Corporation, all checks, drafts, notes, and other orders for the payment of money, and pay out and dispose of them under the direction of the President or the Board of Directors; (iii) keep accurate books of account of all its business and transactions and shall at all reasonable hours exhibit such books and accounts to any Director upon request; (iv) render a report of the condition of the finances of the Corporation at each regular meeting of the Board of Directors and at such other times as shall be required and make a full financial report at the annual meeting of the shareholders; (v) further perform all duties incident to the office of Treasurer of the Corporation; and (vi) if required by the Board of Directors, the Treasurer shall give such bond as the Board determines appropriate for the faithful performance of the foregoing duties. (e) Other officers shall perform those duties and have those powers which may be assigned to them by the Board of Directors. Section 6. Vacancies. All vacancies in any office shall be filled promptly by the Board of Directors. Section 7. Compensation of Officers. The Officers shall receive such salary or compensation as may be fixed by the Board of Directors. 6 ARTICLE IV Shares Section 1. Certificates. The shares of the Corporation shall be represented by certificates prepared by the Directors and signed by the President and by the Secretary, and may be sealed with the seal of the Corporation or a facsimile. The certificates shall be numbered consecutively and in the order in which they are issued. They shall be bound in a book and shall be issued in consecutive order. In the margin of the book shall be entered the name of the person to whom the shares represented by each certificate are issued, the number and class or series of shares, and the date of issue. Each certificate shall state the registered holder's name, the number and class of shares represented by the certificate, the date of issue, the par value of the shares, or that they are without par value. Section 2. Transfer of Shares. The shares of the Corporation shall be assignable and transferable only on the books and records of the Corporation by the registered owner, or by the owner's duly authorized attorney in fact, upon surrender of the certificate duly and properly endorsed with proper evidence of authority to transfer. The Corporation shall issue a new certificate for the shares surrendered to the person or persons entitled thereto. Section 3. Right of First Refusal. In the event any Shareholder desires to transfer his or her shares of the Corporation stock, the registered owner shall first offer the shares to the other shareholders of the Corporation who may purchase the shares at a price agreed upon by the parties. If the registered owner is unable to sell the shares after offering them for sale to the other shareholders, the Board of Directors shall be authorized to redeem the shares for their appraised value. The appraised value of the shares shall be determined by the Board of Directors based upon the written advice of an independent professional qualified to render an opinion as the value of the shares. Section 4. Returned Certificates. All certificates for shares changed or returned to the Corporation for transfer shall be marked by the Secretary "Cancelled", with the date of cancellation. The transaction shall be immediately recorded in the certificate book opposite the memorandum of their issue. The returned certificate may be inserted in the certificate book. ARTICLE V Dividends Section 1. Declaration of Dividends. The Board of Directors may declare dividends payable out of the surplus of the Corporation, whenever in the exercise of their discretion they may deem this declaration advisable. Dividends may be paid in cash, property, or shares of the Corporation. 7 ARTICLE VI Negotiable Instruments, Deeds and Contracts All checks, drafts, notes, bonds, bills of exchange, and orders for the payment of money of the Corporation; all deeds, mortgages, and other written contracts and agreements to which the Corporation shall be a party; and all assignments or endorsements of stock certificates, registered bonds, or other securities owned by the Corporation, shall, unless otherwise directed by the Board of Directors, or unless otherwise required by law, be signed by the President or by any two of the following officers who are different persons: Secretary, Treasurer, or a Vice-President. The Board of Directors may, however, authorize any one of such officers to sign any of such instruments, for and in behalf of the Corporation, without necessity of countersignature; may designate officers or employees of the Corporation, other then those named above, who may, in the name of the Corporation, sign such instruments; and may authorize the use of facsimile signatures of any of such persons. Any shares of stock issued by any other corporation and owned or controlled by the Corporation may be voted at any shareholders' meeting of the other corporation by the President of the Corporation; or, in the President's absence, by any Vice-President of the Corporation who may be present; and, in the event that the President and the Vice-President(s) are absent, then by such person as the President of the Corporation shall, by duly executed proxy, designate to represent the Corporation at such shareholders' meeting. ARTICLE VII Indemnification Section 1. Right to Indemnification. Any person who was, is, or is threatened to be made a party to any action or proceeding, whether civil or criminal (including an action by or in the right of this Corporation or any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which any Director or officer of this Corporation served in any capacity at the request of this Corporation), by reason of the fact that he, his testator or interstate, is or was a Director or officer of this Corporation, or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, shall be indemnified by this Corporation against all judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees actually and necessarily incurred in connection with the defense or appeal of any such action or proceeding, and against any other amounts, expenses and fees similarly incurred; provided that no indemnification shall be made to or on behalf of any Director or officer where indemnification is prohibited by applicable law. This right of indemnification shall include the right of a Director or officer to receive payment from this Corporation for expenses incurred in defending or appealing any such action or proceeding in advance of its final disposition; provided that the payment of expenses in advance of the final disposition of an action or proceeding shall be made only upon delivery to this Corporation of an undertaking by or on behalf of the Director or officer to repay all amounts so advanced if it should be determined ultimately that the Director or officer is not entitled to be indemnified. The preceding right of indemnification shall be a contract right enforceable by the Director or officer with respect to any claim, cause of action, action or proceeding accruing or arising while this by-law shall be in effect. 8 Section 2. Authorization of Indemnification. Any indemnification provided for by Section 1 shall be authorized in any manner provided by applicable law or, in the absence of such law: (a) by the Board of Directors acting by a quorum of Directors who are not parties to such action or proceeding, upon a finding that there has been no judgment or other final adjudication adverse to the Director or officer which establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he personally gained in fact a financial profit or other advantage to which he was not legally entitled, or (b) if a quorum under clause (a) is not obtainable, (i) by the Board upon the opinion in writing of independent legal counsel that indemnification is proper in the circumstances because there has been no such judgment or other final adjudication adverse to the Director or officer, or (ii) by the shareholders upon a finding that there has been no such judgment or other final adjudication adverse to the Director or officer. Section 3. Right of Claimant to Bring Suit. If a claim of indemnification is not paid in full by this Corporation within ninety days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall also be entitled to recover the expenses of prosecuting such claim. Section 4. Non-Exclusivity of Rights. The rights conferred on any person under this Article shall not be exclusive of any other right which may exist under any statute, provision of the Certificate of Incorporation, by-law, agreement, vote of stockholders or disinterested Directors, or otherwise. Section 5. Insurance. Subject to the laws of New York, this Corporation may maintain insurance, at its expense, to protect itself and any Director, officer, employee or agent of the Corporation against any expense, liability or loss of the general nature contemplated by this section, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the laws of New York. Section 6. Severability. It is the intent of this Corporation to indemnify its officers and Directors to the fullest extent authorized by the laws of New York as they now exist or may hereafter be amended. If any portion of this Article shall for any reason be held invalid or unenforceable by judicial decision or legislative amendment, the valid and enforceable provisions of this Article will continue to be given effect and shall be construed so as to provide the broadest indemnification permitted by law. 9 ARTICLE VIII Amendments Section 1. Manner of Amending. These by-laws may be amended by the affirmative vote of the holders of a majority of the shares entitled to vote in the election of any Director at an annual meeting or at a special meeting called for that purpose, provided that a written notice shall have been sent to each shareholder of record entitled to vote at this meeting at the shareholder's last known post-office address at least ten days before the date of the annual or special meeting. The notice shall state the substance of the alterations, amendments, additions, or changes which are proposed to be made in the by-laws. Changes shall be made only as specified in the notice. The by-laws may also be amended or new by-laws adopted by a majority of the entire Board of Directors. However, any by-laws adopted by the Board may be amended or repealed by the shareholders. 10 EX-99.T3B65 143 exhibit_t3b-65.txt ERC ENERGY II, INC. BY-LAWS ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. 1 Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by 2 proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder or record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. 3 ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall not be less than three nor more than 6. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors arc duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. 4 MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. 5 Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, 6 recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not 7 be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. The board of directors may also choose additional vice presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any 8 time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the 9 corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may he attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. 10 Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertified stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the 11 corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the hooks of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the 12 meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on the books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 13 ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall coincide with the calendar year unless otherwise fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director, officer, employee or agent of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer, employee or agent against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any and all expenses (including attorneys' fees) incurred by any such person in defending or settling any such action, 14 suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses if it shall ultimately be determined by a final judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent Corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation. ARTICLE VII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special 15 meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 16 DELAWARE PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA ONONDAGA OPERATIONS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE SIXTH DAY OF october, a.d. 1994, at 2 o'clock p.m. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OMS ONONDAGA OPERATIONS, INC." TO "COVANTA ONONDAGA OPERATIONS, INC.", FILED THE FOURTEENTH DAY OF MARCH, A. D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ HARRIET SMITH WINDSOR ----------------------------------------- HARRIET SMITH WINDSOR, SECRETARY OF STATE 2441463 8100H AUTHENTICATION: 2951534 040135461 DATE: 02-25-04 1 CERTIFICATE OF INCORPORATION OF OMS ONONDAGA OPERATIONS, INC. ***** 1. The name of the corporation is OMS ONONDAGA OPERATIONS, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is 100 common stock; all of such shares shall be One Dollar ($1.00) par value. 2 5. The name and mailing address of the sole incorporator is as follows: NAME MAILING ADDRESS Jennifer Leigh Morgia CT Corporation System 1633 Broadway New York, New York 10019 6. The corporation is to have perpetual existence. THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does make this certificate, hereby declaring and certifying that this is her act and deed and the facts herein stated are true, and accordingly have hereunto set her hand this 6th day of October, 1994. /s/ Jennifer Leigh Morgia ------------------------- Jennifer Leigh Morgia, Incorporator 3 STATE OF OELAUARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 02/06/1996 960034677 - 2441463 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OMS ONONDAGA OPERATIONS, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on January 15, 1996. /s/ _______________________ Authorized Officer 4 STATE OF OELAUARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 02/06/1996 960034677 - 2441463 CERTiFICATE OF AMENDMENT OF CERTiFICATE OF iNCORPORATION OF OMS ONONDAGA OPERATIONS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OMS ONONDAGA OPERATIONS, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ONONDAGA OPERATIONS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March __, 2001. /s/ Patricia Collins ---------------------- Name: Patricia Collins Title: Asst. Secretary 5 OGDEN ALLIED RESOURCE RECOVERY SUPPORT SERVICES, INC. * * ** * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. 1 Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 2 Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitle to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute ox by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. 3 Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The first board shall consist of three directors, Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly 4 created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meeting, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place a shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such tine and at such place as shall from time to time be determined by the board. 5 Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons 6 participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to 7 adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors, The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section. 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the 8 time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. 9 THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose 10 supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shah be renewed every six years) in such sum and with such surety or sureties as 11 shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation, Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. 12 Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certifieste alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent 13 uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment Of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action, a determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its hooks as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. 14 ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation, Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was erected. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. 15 SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware", The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise, INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 16 OGDEN YORKSHIRE WATER OF BESSEMER, INC. * * * * * BY-LAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation nay require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders (euro)or the election of directors shall be held in the City of Fairfield, State of New Jersey, at such place as nay be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other 1 purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders, commencing with the year 1995, shall be held at such date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior 2 to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than 10 nor more than 60 days before the date of the meeting, to each stockholder entitled to vote at such meeting. 3 Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all! meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified, If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. 4 Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the 5 minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than 3 nor more than 5. The first board shall consist of 3 directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until 6 the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. 7 MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on 10 days' notice to each director, either personally or by mail or by facsimile communication; 8 special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings 9 are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the 10 corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined 11 from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, 12 by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors nay also be given by facsimile telecommunication. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. 13 ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors nay also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. 14 Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 15 THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. Section 10. The vice-presidents., or if there shall be more than one, the vice--presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the 16 corporation and of the board of directors in a book to be kept for that: purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 17 THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, 18 vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. >> Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature 19 has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. 20 TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not 21 be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors 22 at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers 23 or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal nay be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws 24 is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 25 EX-99.T3B66 144 exhibit_t3b-66.txt Exhibit T3B-66 DRAVO ENERGY, INC. ----------0---------- B Y - L A W S ----------0---------- ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of Directors shall be held in the City of Pittsburgh, Commonwealth of Pennsylvania, at such place as may be fixed from time to time by the Board of Directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual Meetings of stockholders, commencing with the Year 1984, shall be held on the Friday following the fourth (4th) Thursday of April, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 9:00 o'clock A. M., or at such other date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, the date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of and the number of shares registered in the name of each stockholder. Such list shall he open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city, town, or village where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where said meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the Chairman of the Board and Chief Executive Officer and shall be called by the Chairman of the Board and Chief Executive Officer or Secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the Certificate of Incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period, and except where the transfer books of the Corporation have been closed or a date has been fixed as a record date for the determination of its stockholders entitled to vote, no share of stock shall be voted on at any election for Directors which has been transferred on the books of the Corporation within twenty days next preceding such election of Directors. Section 11. Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action, by any provision of the statutes or of the Certificate of Incorporation, the meeting and vote of stockholders may be dispensed with if all of the stockholders who would have been entitled to vote upon the action if such meeting were held shall consent in writing to such corporate action being taken. ARTICLE III DIRECTORS Section 1. The number of Directors which shall constitute the whole Board shall be not less than three nor more than seven. The first Board shall consist of three Directors. Thereafter, within the limits above specified, the number of Directors shall be determined by resolution of the Board of Directors or by the stockholders at the annual meeting. The Directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each Director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created Directorships resulting from any increase in the authorized number of Directors may be filled by a majority of the Directors then in office, though less than a quorum, or by a sole remaining Director, and the Directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no Directors in office, then an election of Directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created Directorship, the Directors then in office shall constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such Directors, summarily order an election to be held to fill any such vacancies or newly created Directorships, or to replace the Directors chosen by the Directors then in office. Section 3. The business of the Corporation shall be managed by its Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By--laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected Board of Directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected Directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected Board of Directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as shall be specified in a written waiver signed by all of the Directors. Section 6. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board. Section 7. Special meetings of the Board may be called by the Chairman of the Board and Chief Executive Officer on one day's notice to each Director, either personally or by mail or telegram; special meetings shall be called by the Chairman of the Board and Chief Executive Officer or Secretary in like manner and on like notice on the written request of two Directors. Section 8. At all meetings of the Board a majority of the Directors shall constitute a quorum for the transaction of business and the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall he present. Section 9. Unless otherwise restricted by the Certificate of Incorporation or these By--laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if prior to such action all members of the Board or Committee, as the case may be, consent thereto in writing, and such written consent is filed with the minutes of proceedings of the Board or Committee. Section 10. Unless otherwise restricted by the Certificate of Incorporation or by these By-laws, members of the Board of Directors or of any Committee thereof may participate in a meeting of such Board or Committee by means of conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section shall constitute presence in person at such meeting. COMMITTEES OF DIRECTORS Section 11. The Board of Directors may by resolution adopted by the whole Board of Directors, delegate two or more of its number to constitute an Executive Committee which, to the extent provided in such resolution, shall have and exercise the authority of the Board of Directors in the management of the business of the Corporation. The Board of Directors may appoint other committees, specifying their duties and authority, and shall designate whether such committee shall report to the Board of Directors or to the Executive Committee. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required. COMPENSATION OF DIRECTORS Section 13. The Directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as Director. No such payment shall preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor Members of special or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the Certificate of Incorporation or of these By--laws, notice is required to be given to any Director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such Director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall he deposited in the United States mail. Notice to Directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provision of the statutes or of the Certificate of Incorporation or of these By--laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the Corporation to be elected by the Board of Directors shall consist of the Chairman of the Board and Chief Executive Officer, a President, one or more Vice Presidents (any one or more of whom may be designated an Executive Vice President or a Senior Vice President or have added to his title another word or words specially designating the further powers and duties assigned to that officer), a Treasurer, a Controller and a Secretary, who shall hold office until their respective successors are duly elected and qualified. Section 2. Any two or more offices may be held by the same person at one time, except the offices of Chairman of the Board and Chief Executive Officer and Secretary. Section 3. The Board of Directors shall appoint the subordinate officers and agents of the Corporation, shall designate their duties, prescribe their compensation, and take from them such bonds with security as they may see fit. DUTIES OF THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 4. The Chairman of the Board and Chief Executive Officer, who shall be elected from among the Directors, shall be the chief executive officer of the Corporation and, subject to the control of the Board of Directors, shall be in general and active charge of the businesss and affairs of the Corporation. He shall preside at the meetings of the stockholders and of the Board of Directors. DUTIES OF THE PRESIDENT Section 5. The President shall be the chief operating officer of the Corporation and, subject to the control of the Chairman of the Board and Chief Executive Officer shall be responsible for the management of all operating units of the Corporation, and shall perform such other duties as shall be prescribed from time to time by the Chairman of the Board and Chief Executive Officer or the Board of Directors. DUTIES OF THE VICE-PRESIDENT Section 6. The Vice Presidents shall perform such duties as shall be prescribed from time to time by the Chairman of the Board and Chief Executive Officer or the President or the Board of Directors. DUTIES OF THE SECRETARY Section 7. The Secretary shall, under the direction of the Chairman of the Board and Chief Executive Officer, record the proceedings of all meetings of the Board of Directors and of the stockholders for preservation in a suitable book. The Secretary shall notify the stockholders of all annual and special meetings and the members of the Board of Directors of all special meetings, have charge of the corporate seal and perform all the duties which are customary to the office of Secretary of like companies. DUTIES OF THE TREASURER Section 8. The Treasurer shall, under the direction of the Board, have general charge of the funds of the Corporation and shall make such reports of the receipts and disbursements in such form and manner as the Board of Directors may direct. He shall, if so directed by the Chairman of the Board and Chief Executive Officer, attend any or all meetings of the Board of Directors and report on his activities as the Chairman of the Board and Chief Executive Officer may prescribe. DUTIES OF THE CONTROLLER Section 9. The Controller shall, under the direction of the Board, maintain adequate records of all assets, liabilities and transactions of the Corporation; cause adequate audits to be currently and regularly made; prepare financial, cost and tax reports and other reports of a financial and accounting nature required by governmental agencies; and in conjunction with other officers initiate and enforce controls and procedures whereby the business of the Corporation shall be conducted with the maximum of efficiency and economy. He shall, if so directed by the Chairman of the Board and Chief Executive Officer, attend any or all meetings of the Board of Directors and report on his activities as the Chairman of the Board and Chief Executive Officer may prescribe. ARTICLE VI CERTIFICATES OF STOCK Section 1. Every holder of stock in the Corporation shall be entitled to have a certificate, signed by, or in the name of the Corporation by the Chairman of the Board and Chief Executive Officer or the President or a Vice--President and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by such holder in the Corporation. Section 2. Where a certificate is signed (1) by a transfer agent or an assistant transfer agent or (2) by a transfer clerk acting on behalf of the Corporation and a registrar, the signature of the Chairman of the Board and Chief Executive Officer, the President, any such Vice President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may be facsimile. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon and not ceased to be such officer or officers of the Corporation. LOST CERTIFICATES Section 3. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. FIXING RECORD DATE Section 5. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Directors shall think conducive to the interest of the Corporation, and the Directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The Board of Directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the Corporation. CHECKS Section 4. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate, or that may be designated by officers of the Corporation named by the Board of Directors for such purposes. FISCAL YEAR Section 5. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII INDEMNIFICATION Section 1. SUITS NOT BY OR IN THE RIGHT OF THE CORPORATION. The Corporation shall indemnify every person who is or was a party or is threatened to be made a party to any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Corporation), by reason of the fact that he is or was a Director, officer, or employee of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, or employee of another corporation, partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or not taken by him while acting in any such capacity, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement (whether with or without court approval), actually and reasonably incurred by him in connection with such threatened or actual action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any threatened or actual action, suit, or proceeding by adverse judgment, order, settlement, conviction or upon a plea of guilty or of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. Section 2. SUITS BY OR IN THE RIGHT OF THE CORPORATION. The Corporation shall indemnify every person who is or was a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a Director, officer or employee of the Corporation, or is or was serving at the request of the Corporation as a Director, officer or employee of another corporation, partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or not taken by him while acting in any such capacity, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such threatened or actual action or suit if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation. The termination of any such threatened or actual action or suit by a settlement (whether with or without court approval) or by adverse judgment or order shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Corporation. However, no indemnification shall be made under this Section 2 in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless, and only to the extent that, the Court of Common Pleas of Allegheny County, Pennsylvania, or the court in which such action or suit was brought, shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as such Court of Common Pleas or such other court shall deem proper. Section 3. REIMBURSEMENT OF COSTS OF SUCCESSFUL DEFENSE. To the extent that a Director, officer or employee of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 1 or Section 2 of this Article VIII or in defense of any threatened or actual claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. Section 4. DETERMINATION OF STANDARD OF CONDUCT. Any indemnification under Section 1 or Section 2 of this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the Director, officer, or employee is proper in the circumstances because he has met the applicable standard of conduct set forth in such Section. Such determination shall be made: (i) By the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or proceeding; or (ii) If such a quorum is not obtainable, or even if obtainable a majority of a quorum of disinterested Directors so directs, by independent legal counsel (who may be regular independent legal counsel of the Corporation) in a written opinion; or (iii) By the stockholders; provided, however, if it is asserted by any federal or state governmental department or agency that such indemnification is against public policy as expressed in any federal or state statute or is prohibited thereby, such indemnification shall be made only upon receipt of an opinion of independent legal counsel (who may be regular independent legal counsel of the Corporation), that the right of the Corporation to make such indemnification has been settled by controlling precedent, or upon a final adjudication after submission to a court of appropriate jurisdiction that such indemnification is not against public policy as expressed in such statute or prohibited thereby. Section 5. ADVANCE OR EXPENSES. Expenses incurred in defending a threatened or actual civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit, or proceeding as authorized in the manner provided in Section 4 of this Article VIII upon receipt of an undertaking by or on behalf of the Director, officer or employee to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation with respect to such expenses under the provisions of this Article VIII. Section 6. INDEMNIFICATION COVERAGE - OTHER RIGHTS NOT IMPAIRED. The indemnification provided by this Article VIII shall not be deemed exclusive of any other rights to which a Director, officer, employee, agent or any other person may be entitled under any statute, agreement, or vote of stockholders or disinterested Directors, or otherwise, both as to action or failure to act in his official capacity and as to action or failure to act in another capacity while holding any such office or otherwise, and shall continue as to a person who has ceased to be a Director, officer, employee or agent of the Corporation or engaged in an undertaking at the request of the Corporation, and shall inure to the benefit of the heirs, executors and administrators of such a person. The indemnification provided by this Article VIII shall apply to matters which antedate the adoption of this Article. ARTICLE IX AMENDMENTS Section 1. These By--laws may be altered or repealed at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of the stockholders or of the Board of Directors if notice of such alteration, amendment or repeal be contained in the notice of such special meeting. EX-99.T3B67 145 exhibit_t3b-67.txt Exhibit T3B-67 HEBER FIELD ENERGY II, INC. BY-LAWS ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delawarer as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. 2 Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder or record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no 3 proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall not be less than three nor more than 6. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, 4 unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter 5 provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. 6 Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, 7 recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. 8 ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. The board of directors may also choose additional vice presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice presidents, a secretary and a treasurer. 9 Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall 10 have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 11 THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 12 ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertified stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When 13 authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any 14 other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on the books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 15 ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall coincide with the calendar year unless otherwise fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or interstate is or was a director, officer, employee or agent 16 of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer, employee or agent against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any and all expenses (including attorneys' fees) incurred by any such person in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses if it shall ultimately be determined by a final judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent Corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan 17 which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation. ARTICLE VII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the of the power of the stockholders to adopt, amend or repeal by-laws. 18 EX-99.T3B68 146 exhibit_t3b-68.txt Exhibit T3B-68 HEBER LOAN PARTNERS PARTNERSHIP AGREEMENT THIS AGREEMENT is made and entered into this ___th day of March, 1989, by and between ERC ENERGY, INC., a Delaware corporation ("ERC ENERGY"), a wholly owned subsidiary of ERC INTERNATIONAL, INC., a Delaware corporation ("ERC INTERNATIONAL"), and CENTENNIAL GEOTHERMAL CO., a Delaware corporation ("CENTENNIAL THERMA, a wholly owned subsidiary of CENTENNIAL ENERGY, INC., a Delaware Corporation ("CENTENNIAL"). ERC ENERGY and CENTENNIAL GEOTHERMAL are each collectively as the "Partners." ERC INTERNATIONAL and CENTENNIAL are each hereinafter sometimes referred to individually as "Parent" and collectively as "Parents." WITNESSETH: WHEREAS, CENTENNIAL GEOTHERMAL and DRAVO ENERGY', INC. ("DRAVO ENERGY") formed Heber Geothermal Company, a California general partnership, for the purpose of designing, constructing and operating a certain electrical generating station located in Heber, California; and WHEREAS, ERC ENERGY will purchase and acquire all of the issued and outstanding shares of DRAVO ENERGY and then merge into DRAVO ENERGY with DRAVO ENERGY as the surviving 1 corporation, and through such merger DRAVO ENERGY (which simultaneously with the merger will change its name to ERC ENERGY) will, succeed, by operation of law, to all of the assets and of ERC ENERGY and will continue to be, a partner in Heber Geothermal Company; and WHEREAS, ERC ENERGY desires to borrow $4.2 million in order to, inter alia, purchase the shares of DRAVO ENERGY and effect the aforementioned merger and CENTENNIAL GEOTHERMAL desires to borrow $4.2 million in order to, inter alia, repay certain indebtedness owed to DRAVO ENERGY; and WHEREAS, ERC ENERGY and CENTENNIAL GEOTHERMAL desire to form a general partnership under the laws of the State of California to facilitate the above described borrowings as well as for the other purposes and en the terms and conditions stated in this Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the parties herein contained, ERC ENERGY and CENTENNIAL GEOTHERMAL hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Definitions. For purposes-of this Agreement certain terms and provisions used herein are defined as follows: 2 Capital Account. "Capital Account" shall mean the account established pursuant to Section 3.03 hereof. Facility. "Facility" means that certain electrical power generating station constructed by the Operating Partnership in Heber, California together with all' related properties and equipment owned, leased, or otherwise controlled by-the Operating Partnership from time to time and used in connection with the Operating' Partnership's business. Management Committee. "Management Committee" shall mean the committee established in accordance with Article IV. Open Account. "Open Account" shall mean the account established pursuant to Section 3.04 hereof. Operating Partnership. "Operating Partnership" means Heber Geothermal Company, a California Partnership formed under and pursuant to the Operating Partnership Agreement for the purpose Operating Partnership Agreement. The term "Operating Partnership Agreement" means the amended partnership agreement entered into by and between DRAVO ENERGY and CENTENNIAL GEOTHERMAL, including all amendments thereto. Ownership Interests. The term "Ownership Interests" means all of the Partners' rights and interest in the Partnership. 3 Partnership. The "Partnership" shall mean the partnership created by this Partnership Agreement. Partnership Agreement. The term "Partnership Agreement" or "Agreement" shall mean this agreement, as it may be amended from time to time, in writing by the Partners, together with all Exhibits hereto. ARTICLE II FORMATION OF A PARTNERSHIP Section 2.01. Formation of Partnership. ERC ENERGY and CENTENNIAL GEOTHERMAL hereby enter into and form a general partnership (the "Partnership") under the California Uniform Partnership Act (the "Act") for, the purposes set forth herein. Except as expressly provided herein to the contrary, the rights and obligations of the Partners shall be governed by the Act. All real and personal property owned by the Partnership shall, be held in the Partnership name and not in the names of the Individual Partners, and no Partner shall have- any individual ownership in such property except for its property rights as a Partner. Section 2.02. Purposes. The Partnership is intended to be a profit making enterprise and is formed for the following limited purposes: (1) To serve as the nominal borrower of the proceeds of one or more loans for the benefit of the Partners and to lend 4 the proceeds of such borrowings to the Partners for any purpose related to the Facility; (2) To acquire by purchase or in satisfaction of indebtedness owed to the Partnership by a Partner, or otherwise, all or a portion of a Partner's partnership interest in, and to become a partner in, the Operating Partnership; (3) To obtain all financing necessary to carry out the business of the Partnership including the power to provide a security interest in all or some of the Partnership's assets; and (4) To carry on any other activities necessary or incidental to the conduct of the Partnership business. The Partnership shall not engage' in any other business or' activity without the written agreement of both Partners. The Partnership is empowered to do any and all things necessary, appropriate or convenient for the furtherance and accomplishment of its purposes and for the protection and benefit of the Partnership and its properties. Section 2.03. Name and Principal Place of Business. The business of the Partnership will be conducted under the name of Heber Loan Partners ("HLP") and its principal place of business shall be at San Francisco, California. The principal place of business may be changed from time to time, and other places of business may be established by actions taken in 5 accordance with the provisions of this Agreement that govern management of the Partnership's business and affairs. Each Partner shall execute all assumed or fictitious name certificates required by law in connection with the use of the Partnership name. Section 2.04. Term. The Partnership shall commence as of the date of this Agreement and shall continue until the happening of one of the following events, whichever is the latest to occur: (1) Except for the events referred to in Section 8.01(1), (2), (3), (4) and (5), upon notice by either Partner hereto if the other Partner shall willfully fail to perform its obligations hereunder and such failure shall continue for a period of at least three (3) months after written `notice thereof from the Partner claiming such default; provided, however, that in case of a dispute as to whether or not such default exists, the time within which the Partner in default may cure such default shall not commence to run until it shall have been finally adjudicated by a court of last resort having jurisdiction that such Partner is in default; (2) Three (3) months, after the winding up of the partnership affairs of the Operating Partnership following its dissolution. (3) By mutual agreement of the Partners. 6 ARTICLE III CAPITAL Section 3.01. Capital and Working Capital. ERC ENERGY and CENTENNIAL GEOTHERMAL shall contribute capital or working capital to the Partnership in such amounts and at such times as directed by the Management Committee. Section 3.02. Annual Division of Profit or Loss. All annual net profits or losses of the Partnership will be divided equally between ERC ENERGY and CENTENNIAL GEOTHERMAL. For purposes of crediting or charging Capital Accounts, the profit or loss of the Partnership' shall be computed from the income and deductions properly reportable by the Partnership for federal income tax purposes (plus any income specifically exempted from federal income tax). Section 3.03. Capital Accounts. A Capital Account shall be established for each Partner on the books of the Partnership. There shall be credited to the Capital Account of each Partner (i) the amount of cash contributed by the Partner from time to time, (ii) the tax basis (net of liabilities assumed) of any property contributed by such Partner, and (iii) its Share of profits of the Partnership, as determined under Section 302 hereof. There shall be charged against each Partner's Capital Account (i) the amount of all distributions 7 made by the re to such Partner and (ii) its share the Partnership as determined under Section 3.02 hereof. Section 3.04. Open Account. An individual Open Account shall be established and maintained for each Partner. Advances made by each Partner which' are not capital contributions will be credited to the individual Partner's Open Account. Temporary advances of cash by the Partnership to a Partner, other than distributions from the Capital Account, shall only be made for the furtherance of the business of the Partnership and shall be charged to the Partner's Open Account. Interest on, and repayment terms and conditions for, advances through the Open Account shall be determined by the Management Committee and no advances through' the Open Account shall be made prior to such determination as to each such advance by the Management Committee. A credit balance in a Partner's Open Account shall constitute a liability of the Partnership to that Partner and shall not constitute a part of that Partner' $ Capital Account. A debit balance in a Partner's Open Account shall constitute an obligation of that Partner to the Partnership and shall not constitute a part of that Partner's Capital Account. Section 3.05. Distributions. (a) Partnership cash shall be allocated and distributed regularly to the Partners fifty percent (50%) to ERC 8 ENERGY and fifty percent (50%) to CENTENNIAL GEOTHERMAL, after due allocation for the cash necessary for the operation of the requirements of any Partnership indebtedness. Cash necessary for operation of the Partnership business is defined as the amount of cash necessary for thirty (30) days of normal operation to pay accounts payable, payroll, and other operating expenses (other than income taxes). (b) During any year, the Partnership may make advances on account of distributions on an interim basis, per month or per quarter. The annual cash flow budget will be revised as appropriate but no less frequently than on a quarterly basis and previous distributions during the year together with subsequent distributions will be adjusted to the proportions set forth in the revised annual cash flow budget. A final unaudited statement of cash flow for the year will be prepared and all interim cash withdrawals for that year will, be adjusted to the proportions indicated on the final statement of cash flow as soon as practicable. ARTICLE IV MANAGEMENT Section 4.01. Overall Management of the Partnership. Each of the Partner's rights in the management of the business of the Partnership shall be exercised through the 9 Management Committee in accordance with the provisions of this ARTICLE IV. The Partners shall act through a Management Committee composed of two (2) members, consisting of one (1) representative appointed by ERC ENERGY and one (1) representative appointed by delivered one Partner to the other, Each member of the Management Committee shall have one (1) vote in all Management Committee decisions. Except as otherwise provided herein, the Management Committee will conduct its proceedings in accordance with such rules as it may from time to time establish and will keep minutes of its meetings and the actions taken by it. Members of the Management Committee may attend meetings and vote either in person or through duly authorized proxies. Partnership action shall be governed by unanimous vote of the Management Committee. The powers and responsibilities of the Management Committee shall include, but not be limited to, action on and resolution of the following matters. (1) Amendment of this Agreement so as to affect the substantive rights or obligations of either or both Partners hereto. (2) Sales or other disposition of any asset of the Partnership the disposition of which asset would materially impair or change the conduct of the ordinary business of the Partnership as contemplated by this Agreement. 10 (3) Termination of the Partnership otherwise than as provided for in Section 2.04 or 8.02 of this Agreement. (4) Approval of distributions of Partnership cash, subject, however, to the provisions of Section 3.05 of this Agreement. (5) A voluntary prepayment or extension of debt incurred by. the Partnership in connection with the Partnership's lending of such borrowed funds to the Partners. (6) Approval of long range plans and annual capital, revenue and expense budgets and plans, including financial plans and accounting policies. (7) Authorization of any individual expenditure over $5,000 not previously approved as part of a capital budget. (8) Approval of any borrowing of money. (9) Approval to commit the credit of the Partnership, other than to trade creditors in the normal course of business. (10) Voting of the Partnership's interest in, or exercising any right of the Partnership as a partner in, the Operating Partnership. (11) Advances by the Partnership to the Partners under Section 3.04. (12) Select, remove and replace the General Manager. (13) Any other matters that the Executive Committee determines to be a power or responsibility of the Management Committee. Meetings of the Management Committee shall be held regularly but not less than quarterly, or may be called at any time by any representative or by the General Manager upon reasonable notice of the time and place of such meeting to each 11 representative. Such notice may be waived by the written consent of the representatives of each of the Partners. Each Partner shall pay its own expenses and those of its representatives on the Management Committee. Section 4.02. Management of the Partnership. The General Manager, selected by the Executive Committee, shall have the general charge, supervision and conduct of the day-to-day operations of the Partnership. Section 4.03. General Manger. A General Manager, who shall have the responsibilities and authorities of the chief operating officer for the Partnership, shall be appointed by the Management Committee, shall serve at the will of the Management Committee and shall be responsible to and report to the Partners. Section 4.04. Reimbursement for Employees of a Partner or Affiliate. Any employee of a Partner or its affiliate who, at the request of the Partnership, is loaned to the Operating Partnership to perform necessary services shall be paid by the Partner or affiliate by whom they are employed. The Partnership shall' pay such Partner or affiliate any amounts received by the Partnership from the Operating Partnership on account of such services. In the case of personnel of a Partner performing services on a part-time basis on behalf of the Partnership, the Partnership shall reimburse such Partner for 12 the actual costs (inclusive of direct and indirect costs and allocable overhead) which shall be determined on the basis of records reflecting the time spent in rendering services for the Partnership. ARTICLE V TAX MATTERS Section 5.01. Considered a Partnership. Heber Loan Partners is intended to be and shall constitute a "partnership" for federal income tax purposes, within the meaning of Section 761(a) of the Internal Revenue Code of 1954, as amended (the "Code"), and the rules and regulations promulgated thereunder. It is agreed that the income of the Partners attributable to the partnership taxable for federal income tax purposes shall be determined under the provisions of Subchapter K of the Code relating taxation of partners and partnerships, or by superseding legislation rules or regulations enacted in lieu thereof. Each Partner further agrees not to take any action or make any election not to be so treated for purposes of the Code. The Partners, acting through the Management Committee, will make common `elections at the partnership level required by or permitted under the Code. Section 5.02. Allocation of Income. All items of income, gain, loss or' deduction reportable for tax purposes (as well as any tax credits arising from partnership activity and 13 the cost or basis of property with respect to which tax credits may be available) in any year shall be allocated for tax purposes between the Partners in the same percentages as the profits or losses of the partnership are allocated during such year. ARTICLE VI BOOKS AND RECORDS: ACCOUNTING Section 6.01. Books. The Partnership shall, maintain at the Partnership offices at the Facility accurate and complete books and records, on the accrual basis, in accordance with generally accepted accounting principles (which, having been adopted by the Management Committee, shall not be changed without mutual consent), showing all costs, expenditures, sales, receipts, assets and liabilities, and profits and losses, and all other records necessary, convenient or incidental to recording the Partnership's business and affairs. The Partnership's fiscal year shall end December 31. The books and records of the Partnership shall be open to inspection by each' Partner or its designated representative at any reasonable time during business hours. Section 6.02. Records. Within ninety (90) days after the end of each fiscal year of the Partnership, the Partnership shall furnish to each of the Partners an annual, report which shall. include the Partnership' a federal and state income tax 14 returns which it is proposed that the Partnership shall file for that fiscal year, and unaudited statements of income, changes in financial position, and balance sheet for the fiscal year then ended and any additional information that the Partners or either of them may require. Promptly after the end of each quarter, including the last quarter of the fiscal year, there shall be prepared an unaudited balance sheet showing the Partnership's assets and liabilities at the close of the quarter and an unaudited statement of income and a cash flow statement showing the results of its operations for the quarter. Each of the Partners or their representatives upon notice in writing to the Partnership shall have the right to audit the Partnership's books and accounts for any accounting period within the 24 month period following the end of such accounting period; provided, however, the Partnership shall not be required to make any adjustments, as to any Partner, unless and to the extent that such Partner took written exception to the books and accounts and made a claim upon the Partnership for any discrepancies disclosed by said audit within such 24 month period except for claims arising from a determination of any governmental agency that any portion of such books or accounts is erroneous. The expense of all such audits conducted at the request of a Partner 15 shall be borne by the Partner requesting' the audit and shall not be an expense of the Partnership. ARTICLE VII TRANSFER OF PARTNERSHIP INTEREST Section 7.01. Restrictions on Transfer, Changes in Ownership of Partner. No Partner may at any time assign, convey, mortgage, pledge or otherwise dispose of ("transfer") all, or any part of its Ownership Interest in the Partnership or interest in this Agreement, nor' shall control (i e., ownership of more than 50% of the outstanding beneficial ownership interests) of any Partner (or of any upstream entity in control of any Partner) be transferred, whether by merger, sale of assets, sale of stock, consolidation, combination or other corporate reorganization except in accordance with the right of first refusal provisions of this Article VII. In this Article VII only, the Partner (or an entity controlling the Partner, as the case may be) proposing, the transfer is the "Seller," the continuing Partner is the "Buyer," and "Shares" shall mean the Ownership Interest or corporate stock to be transferred, as the case may be. Section 7.02. First Refusal Rights and Obligations. In the event of a proposed transfer of Shares as described in Section 7.01, the following provisions shall apply. 16 (1) Notice. Seller shall notify Buyer in writing of Seller's intent to transfer Shares, which notice ("Initial Notice") will contain (1) the name and/or names of any and all parties to whom the Shares may be transferred, (ii) the price at which said Shares are intended to be sold and (iii) the terms of payment and such other terms and conditions relating to the proposed transfer as are relevant and material for purposes hereof. (2) Right to Purchase. Buyer, and/or such other party or parties as designated by Buyer, shall have the right to purchase the Shares by an additional notice sent or given to Seller not later than 30 days after Buyer's receipt of the Initial Notice. The price to Buyer, or its designate(s), of said Shares shall be equal to the proposed price and the payments and other terms shall be consistent with those stated in the -Initial Notice. Seller shall not be required to sell to Buyer and/or its designates(s) less than all of the Shares covered in the Initial Notice, but may agree to do so. Notwithstanding any of the foregoing, Buyer, or any of its designate(s), shall not be obligated' to make any payment for said Shares to Seller unless or until it has received documents conveying said Shares. All incidents of ownership (including voting rights) shall be deemed to have been transferred as of the date that notice of purchase is sent or given to Seller. (3) Sale to Other(s). In the event and to the extent that the Shares covered by the Initial Notice are not so provided above, not being required to sell less than all of said Shares so covered to Buyer and/or its designate(s)), or if Buyer rejects, in writing, its rights to purchase said Shares, then Seller may transfer all of said Shares (but not less than all of said Shares)' to any and/or all of the parties identified in the Initial Notice (but not others) and upon the purchase, price and, payment and other terms set forth therein and/or as provided herein. In no event, without Buyer's written consent, shall Seller effect any such transfer upon any terms more favorable to any such other party than those set forth in the Initial Notice, and said transfer must be effected within 90 days after the earlier of' (i) the expiration of the 30-day period within which Buyer may purchase the Shares as provided above, or (ii) the 17 date when Buyer rejects, by a written, notice given to Seller, its purchase rights thereto. Section 7.03. Exceptions. The foregoing Sections 7.01 and 7.02 shall not preclude either-Partner from pledging or assigning distributions to be received by it from the Partnership. In addition, it shall not preclude a transfer of `Ownership Interest in the Partnership by a Partner to such Partner's parent or to an entity 100% of whose equity is owned either directly or indirectly by that Partner's parent. Section 7.04. Transferees. All transferees shall execute a written instrument of express assumption pursuant to which it shall take such Shares subject to and burdened with (i) all the terms, provisions and conditions of this Agreement which should then become effective as between the transferee and the remaining Partner, and (ii) all other obligations the transferring Partner has to the Partnership, contractual or otherwise. ARTICLE VIII DEFAULTS AND REMEDIES Section 8.01. Default of a Partner. If any of the following events occur: (1) the entry of a decree or order by a court having jurisdiction in the premises adjudging a Partner or its Parent a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Partner or its Parent under the 18 federal. Bankruptcy Act or any other applicable federal or state law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Partner or its Parent or `of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of ninety (90) consecutive days; or (2) the institution by a Partner or its Parent of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing of a petition or answer or consent seeking reorganization or relief under the federal Bankruptcy Act or any other applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or similar official) of the Partner or its Parent or of any substantial part of its property, or the making by it of an assignment for the benefit or creditors or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Partner or its Parent in furtherance of any such action; or' (3) any part of the Ownership Interest of a partner in the Partnership is seized by a creditor of such Partner, and the same is not released from seizure or bonded out within thirty (30) days from the date of notice of seizure; or (4) a Partner fails to perform any material obligation imposed upon such Partner under any agreement relating to money borrowed from the Partnership, or attempts to transfer any of its Ownership Interest in the Interest in the Partnership except as otherwise provided in Section 7.01; or (5) a Partner fails to repay advances debited to its Open Account upon demand by the partnership; then 19 such Partner shall be deemed to be in default hereunder and shall be referred to as the "Defaulting Partner," and the other Partner shall be referred to as the "Non-Defaulting Partner." The Non-Defaulting Partner shall have the right to give the Defaulting Partner a Notice of Default, which shall be in writing, shall, set forth the nature of the event of default, and shall' set forth the date by which such default must be cured which date shall be ninety (90) days after receipt of the Notice of Default. If within such ninety (90) day period the Defaulting Partner cures such default, the Notice of Default `shall be inoperative, and the Defaulting Partner shall lose no rights hereunder. If, within such specified period the Defaulting Partner does not cure such default, the Non-Defaulting Partner at; the expiration.of such period shall have the rights hereinafter specified. Section 8.02. Buy-Sell Procedure at Option of Non-Defaulting Partner. If a Partner becomes a Defaulting Partner, pursuant to the provisions of Section 8.01 and the default is not cured within the specified period, then, in such event, the Non-Defaulting Partner shall `have the right, at its option, to proceed under the provisions of this Section 8.02 to either: (i) expel the Defaulting Partner from the Partnership by giving written notice specifying the expulsion date and Partner's Ownership Interest in the Partnership at 20 a price which for such purposes shall be equal in amount to the Defaulting Partner' s Ownership Interest in the net book value of the Partnership as determined by generally accepted accounting principles as consistently applied by the Partnership (excluding goodwill and any capital resulting from write-up of assets) as shown by the Partnership books as of the end of the calendar month preceding the date of purchase, after deducting any amounts payable to the Partnership by the Defaulting Partner, any costs or remedying the default and any damages or costs to the Partnership or Non-Defaulting Partner, including any adverse federal tax consequences suffered by the Non-Defaulting Partner, resulting from the default. Payment to the Defaulting Partner may take the form of a ten (10) year promissory note of the Non-Defaulting Partner, the principal amount of which shall be paid in ten (10) equal annual payments, with interest payable annually and in arrears and at the floating prime rate of' Bank of America, San Francisco, California in effect, from time to time, but in no event in excess of the maximum rate of interest `permitted by applicable law; provided, however, that the `Non-Defaulting Partner shall have the option to 21 prepay the note in whole or in part at any time without penalty or premium. In the event the liability in respect of a period prior to the expulsion of the Defaulting Partner which liability had not been accrued on the books of the Partnership on the date the purchase price of the Defaulting Partner' a Ownership Interest `in the net book value of the Partnership was determined, the note provided for in the preceding sentence shall be reduced by an amount equal to the Defaulting Partner's proportionate share of such liability prior to its expulsion, or the Non -- Defaulting Partner may offset such an amount against any Other sums owed by the Partnership to the Defaulting Partner; or (ii) cure the default and the cost of such curing shall be charged against the Defaulting Partner's Capital Account and credited to the Non-Defaulting Partner's Capital Account. In such event, notwithstanding any provision of this Agreement to the contrary, the Ownership Interests of the Partners shall then be adjusted to reflect the relationship of the Partners Capital Accounts to each other. The distribution of Partnership profit and loss and cash flow shall also be -adjusted so that the Non-Defaulting Partner 22 percentage interest therein shall be increased and the Defaulting Partner's percentage interest therein decreased by the same number of percentage points or fraction of a percentage point as was their respective each time a default occurs and is cured by the Non-Defaulting Partner. Adjustments to the Partners' Ownership Interests shall be carried out to the nearest one-tenth of 1%. The Defaulting Partner's liability for any obligations to or of the Partnership, other than those involved in the curing of the default, in respect of a period prior to the effective date of the curing of the default, shall not be affected. In addition to the foregoing, the Non-Defaulting Partner may, at its option, at any time within one (1) year following the date of receipt of notice by the Partner of the uncured default, cause the Partnership to terminate any contracts existing between the Partnership and the Defaulting Partner or its Parent or any of its affiliated entities on not less than ninety (90) days written notice. The right of the Nan-Defaulting Partner to proceed under this Section 8.02 shall be in addition to all other rights and remedies that the Non-Defaulting Partner may have either at law, equity, or otherwise. 23 ARTICLE IX RESOLUTION OF DISPUTES ARBITRATION Section 9.1. Any dispute between the Partners arising out of the interpretation or implementation of this Agreement shall initially be reviewed and considered by the Chief Executive officer (or his designate) of each of the Partners hereto, and in the event the: Partners are unable, within a reasonable period of time to resolve their differences by such means, then the dispute shall be determined by arbitration pursuant to the then current commercial arbitration rules of the American Arbitration Association. The request for arbitration shall be in writing, setting forth in detail the claim or claims to be arbitrated, the amount involved, if any, and the remedy sought. It shall be delivered to the other party within ninety (90) days from the date that discussions between the Chief Executive Officers terminated. Any failure to request arbitration within such ninety-day period shall be deemed a waiver of the right to arbitrate the dispute unless excused in writing. A board of three arbitrators shall be selected by the American Arbitration Association. The decision of not less than a majority of the arbitrators shall be final. Section 9.2. The existence of a dispute which has oz may become the subject of arbitration shall in no way excuse either ERC ENERGY or CENTENNIAL GEOTHERMAL from performing its 24 obligations under this Agreement and each of the parties hereto shall continue to perform in accordance with the terms of this Agreement irrespective of the existence of any such dispute. Section. 9.3. The Partner responsible for payment of the cost of arbitration shall, be determined by the American Arbitration Association. ARTICLE X CONTRIBUTI TO PARTNERSHIP LIABILITIES, INDEMNIFICATION If either Partner pays any Partnership liability or obligation, the Partnership shall reimburse such Partner. Any payment under this Section by a Partner that is not reimbursed shall be considered a contribution to the capital of the Partnership. If the Partnership is unable to make such reimbursement, each Partner agrees to, and does hereby indemnify and save and hold harmless the other Partner, and to the extent set forth below each Affiliate and the Parent of the other Partner, from and against all claims, causes of action, liabilities, payments, obligations, expenses (including without limitation reasonable Lees of and disbursements, of counsel) or losses ("claims, liabilities and losses") arising out of a Partnership liability or obligation to the extent necessary to accomplish the result that neither Partner (together with its Affiliates and its Parent) shall bear any portion of a liability or obligation of the Partnership in any manner other than 25 equally. Without limiting the generality of the foregoing, a claim, loss or liability shall be deemed to arise out of a Partnership liability or obligation if it arises out of, or is based upon, the conduct of the business of the Partnership or the Partnership's ownership of an interest in the Operating Partnership or any other property of the `Partnership (such property being hereinafter, referred to as the "Partnership Property"). The foregoing indemnification shall be available to an Affiliate and the Parent of a Partner with respect to a claim, liability or loss arising out of a Partnership liability or obligation, which is paid by or incurred by such Affiliate or Parent as a result of such Affiliate or Parent directly or indirectly owning or controlling a Partner, or as a result of the fact that an individual employed or engaged by the Partnership or a contractor is also a director, officer, or employee of such Affiliate or Parent. The foregoing shall not inure to the benefit of any Partner (or 26 Affiliate or Parent of any Partner) in respect of any claim, liability or loss which (1) arises out of, or is based upon, the gross negligence or willful misconduct of such Partner or the Parent or Affiliate of such Partner, (2) is a tax, levy or similar law or governmental charge not imposed upon the Partnership or upon Partnership Property, or (3) results from the breach, failure to perform or negligent performance of, any obligation of any Partner (or Affiliate or Parent of any Partner) under any contract entered into with the Partnership or on behalf of the Partnership, the Partnership reserving full right of legal recourse against each Partner and its Affiliates and Parents for breach or improper performance of such obligations. It is understood and agreed that, for the purposes of the foregoing sentence, no claim, liability or loss shall be deemed to arise out of, or be based upon, the gross negligence or willful misconduct of the Affiliate or Parent of any Partner solely by reasons of the fact that it arises out of, or is based upon, the gross negligence or willful misconduct of a director, officer, or employee of such Affiliate or Parent, if at the time of such negligence or misconduct such director, officer or employee was the Partnership. The foregoing indemnity shall apply only to~ a claim, liability or loss to the extent that it is uninsured by the Partnership. ARTICLE XI DISTRIBUTION ON TERMINATION Section 11.01. Winding Up of Partnership. Upon the dissolution of the Partnership or its termination for any reason, the assets of the Partnership, after payment of liabilities, shall be converted into cash and the Capital 27 Accounts adjusted for such sales and the proceeds distributed in the following manner: (a) All Partnership liabilities shall be paid and discharged, or adequate funds set aside for the payment and discharge thereof, all out of the Partnership's cash after sale of all assets, with either Partner having the right of first refusal, for a period of not more than 90 days from the receipt of a third party offer to purchase, to purchase such assets at the same price and on the same terms and conditions as such third party offer. In the event that the liabilities of the Partnership cannot be fully satisfied and discharged after the sale or sales of all assets, the Partners shall assume and pay the excess equally; provided, however, that if the Capital adjusted for such sale or sales of all assets, shall be negative, such Partner shall first contribute to the Partnership an amount equal to the negative balance of its Capital Account. Any such payment will be credited to such Partner's Capital Account. (b) Thereafter, (i) a final examination, under United States, generally accepted auditing standards, of the Partnership's financial statements prepared in accordance with United States generally accepted 28 accounting principles shall be made by the Partnership's independent public accountants, and (ii) statements setting forth the Partners' Capital Accounts shall be prepared by such independent public accountants in accordance with Section 3.03 of this Agreement. Copies of such financial statements and statements respecting Capital Accounts shall be furnished to each Partner. The Capital Accounts subsequent to these adjustments shall be termed the "Final Capital Accounts" (c) In the event that the Final Capital Account of a Partner is negative, such Partner shall pay to the Partnership an amount equal to' the negative balance in its account. The Partnership shall retain sufficient assets as a reserve to meet its obligations and contingent liabilities. It shall distribute any assets in excess of such reserve and, from time to time, such assets as are no longer needed for such reserve, to the Partners in proportion to their Final Capital Accounts. (d) The Partnership shall terminate when all property owned by the proceeds, after payment or satisfaction of liabilities to Partnership creditors shall have been distributed to the Partners. 29 (e) Notwithstanding anything herein to the contrary, the provisions of this Article XI are meant to define the respective rights and duties of the Partners, and shall not give any third parties any rights against the Partners. ARTICLE XII GENERAL PROVISIONS Section 12.01. Integration. This Partnership Agreement is the entire agreement between the parties with respect to the subject matter hereof. Any prior' agreements, promises, negotiations or representations inconsistent with this Agreement (and not expressly set forth herein are of no force and effect. No alteration, modification, or interpretation hereof shall be binding unless in writing and signed by the Partners. Section 12.02. Interpretation. This Partnership Agreement shall be interpreted and construed in accordance with the laws of the State of California. The titles of the Articles and Sections in this Agreement have been inserted as a matter of convenience, are for reference only, and shall not control or affect the meaning or construction of any of the terms and provisions hereof. Section 12.03. Inspection. Each Partner or its authorized representatives, at its own expense, may examine and 30 reproduce any of the Partnership's books or records, or may inspect the property of the Partnership at any reasonable time, and on reasonable notice. In addition, the Partnership shall, upon request, make available for examination by the Partners or their representatives, copies of all records and any and all other data relating to' the operations by the Partnership which it may have available. Each Partner, at its own expense, shall be entitled to copy any such data or records. Section 12.04. Force Majeure. The respective obligations of each Partner hereto, other than the obligation to pay money shall be suspended while it is prevented from complying therewith, in whole or in part, by weather conditions, labor accidents or incidents, rules and regulations of any federal, state, or other governmental agency, delays in transportation, inability to obtain necessary materials in the open market, or any other cause of the same or other character beyond the reasonable control of such Partner. Section 12.05. Notices. All notices, consents, requests, reports and other documents authorized or required, to be given pursuant to this Agreement shall be effective when personally served upon the Partner to be given such notice at the' address designated by it hereinbelow, or seventy-two (72) hours after the -same shall have been deposited in the United States Mails, properly addressed, certified or registered with 31 return receipt requested, and with postage thereon fully prepaid. Until otherwise specified by notice in writing, the addresses for such notice shall be: If to ERC ENERGY: ERC ENERGY, INC. c/o ERC INTERNATIONAL, INC. 3211 Jermantown' Road P.O. Box 10107 Fairfax, Virginia 22030 Attention: President If to CENTENNIAL GEOTHERMAL: CENTENNIAL GEOTHERMAL, INC. 650 California Street, Suite 2250 San Francisco, CA 94108 Attention: President Any Partner may at any time by written notice to the other. Partner change the address to which payment, notices, or communications shall be sent. Section 12.06. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, subject to the restrictions on assignability set forth in ARTICLE VII hereof. Section 12.07. Severability. If any provisions of this Agreement or the application thereof to any party or circumstances shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such 32 provision to other parties or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. WITNESS: ERC ENERGY, INC. By ------------------------------------- Title/s/ Vice President /s/ Paul B. Clemente - -------------------------- WITNESS: CENTENNIAL GEOTHERMAL, INC. - -------------------------- By ------------------------------------- Title/s/ Vice President 33 EX-99.T3B69 147 exhibit_t3b-69.txt Exhibit T3B-69 LMI, INC. BY-LAWS ARTICLE I - Stockholders 1. Place of Meetings. All meetings of the stockholders shall be held either at the principal office of the corporation or at such other place within the United States as is determined by the Board of Directors and stated in the notice. 2. Annual Meetings. The annual meeting of the stockholders entitled to vote shall be held at ten o'clock in the forenoon (or at such other time as is determined by the Board of Directors and stated in the notice) on the second Tuesday in April after the end of each fiscal year, if such day is not a legal holiday, and if a legal holiday, then on the next succeeding day that is not a Saturday, Sunday or legal holiday at such location as is determined by the Board of Directors and stated in the notice. Purposes for which an annual meeting is to be held, in addition to those prescribed by law, by the, Articles of Organization and by these By-Laws, may be specified by the President, the Treasurer or the Board of Directors or, upon written application delivered to the Clerk not less than twenty (20) days before the date of the meeting, by one or more stockholders who are entitled to vote and who hold at least one-tenth part in interest of the capital stock entitled to vote at the meeting. If such annual meeting is not held on the date fixed, or by adjournment therefrom, a special meeting of the stockholders shall be held in place thereof, and any business transacted or elections held at such special meeting shall have the same force and effect as if transacted or held at the annual meeting. Any such special meeting shall be called as provided in Section 3 of this Article I. 3. Special Meetings. Special meetings of the stockholders entitled to vote may be called by the President, the Treasurer or the Directors, and shall be called by the Clerk, or in case of the death, absence, incapacity or refusal of the Clerk, by any other officer, upon written application of one or more stockholders who are entitled to vote and who hold at least one--tenth part hi interest of the capital stock entitled to vote at the meetings. The call for the meeting shall state the day, hour, place and purposes of the meeting. 4. Notice of Meetings. Notice of all meetings of stockholders, stating the place, date and hour thereof, and the purposes for which the meeting is called, shall be given to each stockholder by the Clerk or other person calling the meeting. Notice must be given in writing and such writing shall be sufficient if given personally or by postage--prepaid mailing, telegraph, telex or cable. Notice must be given at least 7 days before the meeting, to each stockholder entitled to vote thereat and to each stockholder who, under the Articles of Organization or these By-Laws, is entitled to such notice, such notice addressed to his usual place of business or residence as it appears upon the books of the corporation. No notice of a meeting of the stockholders need be given to any stockholder if such stockholder, by a writing (including, without limitation, by telegraph, telex, telecopy or cable) filed with the records of the meeting (and whether executed before or after such meeting) waives such notice, or if such stockholder attends the meeting without protest prior thereto or at its commencement the lack of notice to him. Every stockholder who is present at a meeting (whether in person or by proxy) shall be deemed to have waived notice thereof; provided, however, that in the absence of his waiver in 2 writing, a stockholder may expressly reserve his objection to the transaction of any business as to which requisite notice was not given to him and on which he does not vote. 5. Quorum of Stockholders. The holders of a majority interest of all stock issued, outstanding and entitled to vote at a meeting shall constitute a quorum; except that, if two or more classes of stock are outstanding and entitled to vote as separate classes, then in the case of each such class, a quorum shall consist of the holders of a majority in interest of the stock of that class issued, outstanding and entitled to vote. 6. Adjournments. Any meeting of the stockholders may be adjourned to any other time and to any other place by the stockholders present or represented at the meeting, although less than a quorum, or by any officer entitled to preside or to act as clerk of such meeting if no stockholder is present. It shall not be necessary to notify any stockholder of any adjournment. Any business which could have been transacted at any meeting of the stockholders as originally called may be transacted at any adjournment thereof. 7. Votes and Proxies. At all meetings of the stockholders, each stockholder shall have one vote for each share of stock having voting power registered in such stockholder's name, and a proportionate vote for a fractional share, unless otherwise provided by the Articles of Organization or in these By-Laws. Scrip shall not carry any right to vote unless otherwise provided therein; but if scrip provides for the right to vote, such voting shall be on the same basis as fractional shares. Absent stockholders may vote in like manner by lawful proxy. No proxy which is dated more than six months before the meeting at which it is to be used shall be accepted, and no proxy shall be valid after the final adjournment of such meeting. Proxies need not be sealed or attested. A proxy with respect to stock held in the name of two or more persons 3 shall be valid if executed by one of them unless at or prior to exercise of the proxy the corporation receives a specific written notice to the contrary from any one of them. A proxy purporting to be executed by or on behalf of a stockholder shall be deemed valid unless challenged at or prior to its exercise. 8. Action at a Meeting. When a quorum is present, the holders of a majority of the stock present or represented and voting on a matter (or if there are two or more classes of stock entitled to vote as separate classes, then in the case of each such Class, the holders of a majority of the stock of that class present or represented and voting on a matter), except where a larger vote is required by law, the Articles of Organization or these By--Laws, shall decide any matter to be voted on by the stockholders. Any election by stockholders shall be determined by a plurality of the votes cast by the stockholders entitled to vote at the election. No ballot shall be required for such election unless requested by a stockholder present or represented at the meeting and entitled to vote in the election. The corporation shall not directly or indirectly vote any share of its stock. 9. Action without a Meeting. Any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting if all stockholders entitled to vote on the matter consent to the action in writing and the written consents are filed with the records of the meetings of stockholders. Such consents shall be treated for all purposes as a vote at a meeting. 4 ARTICLE II - Officers and Directors 1. Elections. The corporation shall have a Board of Directors consisting of such number (but not less than the minimum number required by law or the Articles of Organization) as may be fixed by the stockholders, a President, a Treasurer and a Clerk and such other officers as the Board of Directors may from time to time designate. At each annual meeting, the stockholders shall fix the number of Directors to be elected, and shall elect Directors of each class of stock set forth in the Articles of Organization. As used in these By-Laws, the terms "Directors" and "Board of Directors" shall include Directors of all classes of stock, if more than one class is authorized by the Articles of Organization of the corporation, as may be amended from time to time. At any meeting, the stockholders may increase or decrease the number of, Directors within the limits above specified. The Chairman of the Board, if any, the President, the Treasurer and the Clerk shall be elected annually by the Directors at their first meeting following the annual meeting of the stockholders. The Board of Directors may, from time to time, elect or appoint such other officers as it may determine, including, but not limited to, one or more Vice-Presidents, one or more Assistant Treasurers, one or more Assistant Clerks, and a Secretary. No officer or Director need be a stockholder. The Chairman of the Board, if any, shall be elected by and from the Board of Directors, but no other officer need be a Director. Two or more offices may be held by any one person. If required by vote of the Board of Directors, an officer shall give bond to the corporation for the faithful performance of his duties, in such form and amount and with such sureties as the Board of Directors may determine. The premiums for such bonds shall be paid by the corporation. 5 2. Tenure. Each Director shall hold office until the next annual meeting of the stockholders and until his successor is elected and qualified or until he sooner dies, resigns, is removed or becomes disqualified. Each other officer shall each hold office until the first meeting of the Board of Directors following the next annual meeting of the stockholders and until his successor is elected or appointed and qualified, or until he dies, resigns, it removed or becomes disqualified, unless a shorter term is specified in the vote electing or appointing said officer. Any Director or officer may resign by giving written notice of his resignation to the Chairman of the Board, if any, the President, the Clerk or the Secretary, if any, or the Board of Directors at a meeting of the Board, and such resignation" shall become effective at the time specified therein. Any Director may at any time be removed with or without cause by the affirmative vote of the holders of a majority in interest of the capital stock issued and outstanding and entitled to vote; provided, that a Director of a class elected by a particular class of stockholders may be removed only by the affirmative vote of the holders of a majority in interest of -the stock of such class. Any other officer may at any time be removed with or without cause by vote of the Board of Directors. A Director or officer may be removed for cause only after a reasonable notice and opportunity to be heard before the body proposing to remove him. 3. Vacancies. Any vacancy in the office of Director of a given class may be filled by the stockholders who elect such Directors of such class at a meeting called for that purpose, Pending action by the stockholders, such vacancy may be filled by vote of a majority of the remaining Directors of such class or by appointment by all of the Directors of such class if less than a quorum shall remain in office. Any vacancy in the position of any officer may be filled by the Board of Directors. During the absence or inability to act of any officer, the Board of 6 Directors may by vote appoint a person to perform the duties of such officer subject, however, to the right of the stockholders to supersede such appointment with respect to a Director elected by the stockholders. ARTICLE III -- Board of Directors 1. Powers. The Board of Directors may exercise all the powers of the corporation except such as are required by law or by the Articles of Organization or these By-Laws to be otherwise exercised, and shall have the general direction, control and management of the property and business of the corporation. All property of the corporation, which shall be in the custody of the Board of Directors, shall be subject at all times to inspection by the President and the Treasurer or either of them. Unless otherwise provided by law, the Board of Directors shall have power to purchase and to lease, pledge, mortgage and sell such property (including the stock of the corporation) and to make such contracts and agreements as they deem advantageous, to fix the price to be paid for or in connection with any property or rights purchased, sold, or otherwise dealt with by the corporation, to borrow money, issue bonds, notes and other obligations of the corporation, and to secure payment thereof by the mortgage or pledge of all or any part of the property of the corporation. The Board of Directors may determine the compensation of Directors and the compensation and duties, in addition to those prescribed by these By-Laws, of all officers, agents and employees of the corporation. 2. Meetings. Meetings of the Directors need not be held in the state of incorporation. 7 (a) Regular Meetings. Regular meetings of the Board of Directors may be held without call or notice at such places and at such times as may be fixed by the Board of Directors from time to time, provided that any Director who is absent when such determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without a call or notice at the same place as the annual meeting of stockholders, or the special meeting held in lieu thereof, immediately following such meeting of stockholders. (b) Special Meetings. Special Meetings of the Board of Directors may be called by the Chairman of the Board, if any, the President, the Clerk, or any Directors. Notice of the time and place of all special meetings shall be given by the Clerk or the Secretary or the officer or Directors calling the meeting. Notice must be given orally, by telephone, by telegraph or in writing, and such notice shall be sufficient if given in time to enable the Director to attend, or in any case if sent by mail or telegraph, at least three days before the meeting, addressed to a Director's usual or last known place of business or residence. No notice of any meeting of the Board of Directors need be given to any Director if such Director, by a writing (including, without limitation, by telegraph, telex, telecopy or cable) filed with the records of the meeting (and whether executed before or after such meeting), waives such notice, or if such Director attends the meeting without protesting prior thereto or at its commencement the lack of notice to him. 3. Quorum of Directors. At any meeting of the Board of Directors, a majority of the number of Directors then constituting a full Board shall constitute a quorum, but a lesser number may adjourn any meeting from time to time without further notice. Unless otherwise provided 8 by law or by the Articles of Organization or by these By-Laws, business may be transacted by vote of a majority of the Directors then present at any meeting at which there is a quorum. 4. Action Without a Meeting. Unless otherwise provided by law or by the Articles of Organization or by these By-Laws, any action required or permitted to be taken at any meeting of the Directors may be taken without a meeting if all the Directors then in office consent to the action in writing and the written consents are filed with the records of the meetings of Directors. Such consents shall be treated for all purposes as a vote at a meeting. 5. Committees of Directors. The Board of Directors may, by vote of a majority of the number of Directors then constituting a full Board, elect from its membership an Executive Committee, and such other committees as it may determine, comprised of such number of its members as it may from time to time determine, and delegate to any such committee or committees some or all of its powers except those which by law, the Articles of Organization or these By--Laws, it is prohibited from delegating. Except as the Directors may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Directors or in such rules, its business shall be conducted as nearly as may be in the manner as is provided by these By-Laws for the Directors 6. Telephone Conference Meetings. The Board of Directors or any committee thereof may participate in a meeting of such Board of Directors or committee thereof by means of a conference telephone (or similar communications equipment) call by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. 9 ARTICLE IV - Executive Offices 1. Chairman of the Board. The Chairman of the Board, if any, shall preside at all meetings of the Board of Directors, and shall have such authority and perform such duties as the Board of Directors may from time to time determine. 2. President. Except for meetings at which the Chairman of the Board, if any, presides in accordance with Section 1 of this Article IV, the President shall, if invited by the Board of Directors to attend and if present, preside at all meetings of stockholders and of the Board of Directors. He shall, subject to the control and direction of the Board of Directors, have general supervision and control over the business of the corporation, except as otherwise provided by these By-Laws, and he shall have and perform such other powers and duties as may be prescribed by these By-Laws or from time to time be determined by the Board of Directors. 3. Vice Presidents. The Vice Presidents, if any, in the, order of their election, or in such other order as the Board of Directors may determine by specific vote or by title, shall have and perform the powers and duties of the President (or such of the powers and duties as the Board of Directors may determine) whenever the President is absent or unable to act. The Vice Presidents, if any, shall also have such other powers and duties as may from time to time be determined by the Board of Directors. 4. Treasurer and Assistant Treasurers. The Treasurer shall, subject to the control and direction of the Board of Directors, have and perform such powers and duties as may be prescribed in these By-Laws or be determined from time to time by the Board of Directors. He shall have custody of all moneys, obligations, contracts and other valuable documents of the 10 corporation except his own bond and the record books, and shall collect all moneys from time to time due and owing to the corporation and disburse the same pursuant to the contracts and obligations of the corporation or the order of the Board of Directors or the stockholders. He shall have custody of the stock and transfer books of the corporation, unless and until a transfer agent is appointed, and shall keep accurate books of account of all the transactions of the corporation. All property of the corporation in his custody shall be subject at all times to the inspection and control of the Board of Directors. Unless otherwise voted by the Board of Directors, each Assistant Treasurer, if any, shall have and perform the powers and duties of the Treasurer whenever the Treasurer is absent or unable to act, and may at any time exercise such of the powers of the Treasurer, and such other powers and duties, as may from time to time be determined by the Board of Directors. 5. Clerk and Assistant Clerks. The Clerk shall be a resident of Massachusetts unless the corporation has a resident agent appointed for the purpose of service of process. He shall have and perform the powers and duties prescribed in these By-Laws, and such other powers and duties as may from time to time be determined by the Board of Directors. He shall attend all meetings of the stockholders and shall record upon the record book of the corporation all votes of the stockholders and minutes of the proceedings at such meetings. He shall have custody of the record books of the corporation. Assistant Clerks, if any, shall have such powers as the Directors may from time to time designate. In the absence of the Clerk from any meeting of stockholders, an Assistant Clerk, if one be elected, otherwise a Temporary Clerk designated by the person presiding at the meeting, shall perform the duties of the Clerk. 11 6. Secretary. The Board of Directors may elect a Secretary, but if no Secretary is elected, the Clerk (or, in the absence of the Clerk, any Assistant Clerk) shall act as the Secretary. The Secretary shall attend all meetings of the Directors and shall record all votes of the Board of Directors and minutes of the proceedings at such meetings. The Secretary (or the Clerk) shall notify the Directors of their meetings, and shall have and perform such other powers and duties as may from time to time be determined by the Board of Directors. If a Secretary is elected but is absent from any such meeting, the Clerk (or any Assistant Clerk) may perform the duties of the Secretary; otherwise, a Temporary Secretary may be appointed by the meeting. ARTICLE V - Capital Stock 1. Certificates of Stock. Each stockholder shall be entitled to a certificate of the capital stock of the corporation owned by him. All certificates for shares of stock of the corporation shall state the number and class of shares evidenced thereby (and designate the series, if any), shall be signed by the President or a Vice President and either the Treasurer or an Assistant Treasurer, may (but need not) bear the seal of the corporation and shall contain such further statements as shall be required by law. The Board of Directors may determine the form of certificates of stock except insofar as prescribed by law or by these By-Laws, and may provide for the use of facsimile signatures thereon to the extent permitted by law. If the corporation is authorized to issue more than one class or series of stock, every stock certificate issued while it is so authorized shall set forth on the face or back thereof either -- (a) the full text of the preferences, voting powers, qualifications and special, and relative rights of the shares of each class and series, if any, authorized to be issued as set forth in the Articles of Organization; or 12 (b) a statement of the existence of such preferences, powers, qualifications and rights, and a statement that the corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. 2. Transfers. The transfer of all shares of stock in the corporation shall be subject to the restrictions, if any, imposed by the Articles of Organization, these By-Laws or any agreement to which the corporation is a party. Every certificate for shares which are subject to any such restrictions on transfer shall have the restrictions noted conspicuously on the certificate and shall also set forth upon the face or back thereof either the full text of the restrictions or a statement of the existence of such restrictions and a statement that the corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. Subject to any such restrictions, title to a certificate of stock and to the shares represented thereby shall be transferable on the books of the corporation (except when closed as provided by these By--Laws) upon surrender of the certificate therefor duly endorsed, or accompanied by a separate document containing an assignment of the certificate or a power of attorney to sell, assign or transfer the same, or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby, with all such endorsements or signatures verified if required by the corporation; but the person registered on the books of the corporation as the owner of the shares shall have the exclusive right to receive dividends thereon and to vote thereon as such owner, shall be held liable for such calls and assessments as may lawfully be made thereon, and except only as may be required by law, may in all respects be treated by the corporation as the exclusive Owner thereof. It shall be the duty of each stockholder to notify the corporation of his post office address. 13 3. Fixing Record Date. The Board of Directors may fix in advance a time of not more than sixty days preceding the date Of any meeting of stockholders or the date for payment of any dividend or the making of any distribution to stockholders or, the last day on which the consent or dissent of stockholders may be effectively expressed for any purpose, as the record date for determining the stockholders having the right to notice of and to vote at such meeting and any adjournment thereof, or the right to receive such dividend or distribution, or the right to give such consent or dissent, and in such case, only stockholders of record on such record date shall have such right, notwithstanding any transfer of stock on the books of the corporation after the record date; or without fixing such record date the Board of Directors may, for any such purposes, close the transfer books for all or any part of such sixty--day period. If no record date is fixed and the transfer books are not closed - (a) the record date for determining stockholders having the right to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given; and (b) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors acts with respect thereto. 4. Lost Certificates. In case any certificate of stock of the corporation shall be lost or destroyed, a new certificate may be issued in place thereof on reasonable, evidence of such loss or destruction, and upon the giving of such indemnity as the Board of Directors may require for the protection of the corporation or any transfer agent or registrar. In case any certificate 14 shall be mutilated, a new certificate, may be issued in place thereof upon such terms as the Board of Directors may prescribe. 5. Issue of Stock. Unless otherwise voted by the incorporators or stockholders, the whole or any part of any unissued balance of the authorized capital stock of the corporation or the whole or any part of any capital stock of the corporation held in its treasury may be issued or disposed of by vote of the Board of Directors in such manner, for such consideration and on such terms as the Board of Directors may determine. 6. Dividends. Subject to any applicable provisions of the Articles of Organization and pursuant to law, dividends upon the capital stock of the corporation may be declared by .the Board of Directors at any regular or special meeting. Dividends may be paid in cash, in property or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Board of Directors may from time to time, in the absolute discretion of the Board, think proper as a reserve fund to meet contingencies, for equalizing dividends, for repairing or maintaining any property of the corporation, for working capital or for such other purposes as the Board of Directors shall think conducive to the interests of the corporation. ARTICLE VI - Miscellaneous Provisions 1. Fiscal Year. The fiscal year of the corporation shall end on December 31 of each year. 15 2. Seal. The seal of the corporation shall bear its name, the word "Massachusetts" and the year 1986 (the year of its incorporation) and may bear such other device or inscription as the Board of Directors may determine. 3. Execution of Instruments. All deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations for the payment of money made, accepted or endorsed by the corporation shall be executed on behalf of the corporation by such person or persons, as may be authorized from time to time by vote of the Board of Directors. 4. Contributions. The Board of Directors shall have authority to make donations from the funds of the corporation, in such amounts as the Board of Directors may determine to be reasonable and irrespective of corporate benefit, for the public welfare or for community fund, hospital, charitable, religious, educational, scientific, civic or similar purposes, and in time of war or other natural emergency in aid thereof. 5. Evidence of Authority. A certificate by the Clerk, an Assistant Clerk or the Secretary, or a Temporary Clerk or Temporary Secretary, as to any action taken by the stockholders, Board of Directors, any Committee of the Board of Directors or any officer or representative of the corporation shall, as to all persons who rely thereon in good faith, be conclusive evidence of such action. The exercise of any power which, by law or under these By-Laws or under any vote of the stockholders or of the Board of Directors, may be exercised in case of absence or any other contingency, shall bind the corporation in favor of anyone relying thereon in good faith, whether or not the absence or contingency existed. 16 6. Indemnification of Officers and Directors. The corporation shall indemnify and hold harmless each person who heretofore has served, ,is currently serving or hereafter serves: (a) as an officer or Director of the corporation; (b) at the request Of the corporation, as an officer or Director of another organization; or (c) at the request of the corporation, in any capacity with, respect to an employee benefit plan; from and against any and all claims and liabilities to which such person may be or become subject by reason of such service (including, without limitation, by reason of such person's alleged acts or omissions in the course of such service), and shall indemnify and reimburse each such person against and for any and all legal and other expenses reasonably incurred by such person in connection with any such claims and liabilities, actual or threatened, whether or not at or prior to the time when so indemnified, held harmless and reimbursed such person has ceased to serve in such capacity, except with respect to any matter as to which such person shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interest of the corporation (or, to the extent that such matter relates to service with respect to an employee benefit plan, in the best interests of the participants or beneficiaries of such plan); provided, however, that prior to such final adjudication the corporation may compromise and settle any such claims and liabilities and pay such expenses, if such settlement or payment or both appears, in the judgment of a majority of those members of the Board of Directors who are not involved in such matters, to be in the best interest of the 17 corporation (or of the participants or beneficiaries of any such plan, as the case may be) as evidenced by a resolution to that effect adopted after receipt by the corporation of a written opinion of counsel for the corporation, that, based on the facts available to such counsel, such person has not been guilty of acting in a manner that would prohibit indemnification. Such indemnification may include payment by the corporation of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if be shall be adjudicated to be not entitled to indemnification under this Section 6, which undertaking may be accepted without reference to the financial ability of such person to make repayment. The right of indemnification herein provided shall be in addition to- and not exclusive of any other rights to which any such person may otherwise be lawfully entitled. As used in this Section 6, all references to persons who are to be indemnified, shall include their respective heirs, executors and administrators. 7. Definitions. All references in these By-Laws to the following terms shall have the following meanings unless Specifically otherwise provided: By-Laws - These By-Laws, as altered or amended from time to time. Articles of Organization -- The Articles of Organization of the corporation recorded with the office of the Massachusetts Secretary of State, as may be amended from time to time. 18 Number of Directors then Constituting a Full Board -- The number of Directors last fixed by the incorporators or stockholders pursuant to Section 1 of Article II of these By-Laws. Annual Meeting of Stockholders - Either the annual meeting of the stockholders held on the date fixed therefor, or if it is not held on such fixed date, a special meeting held in place thereof. In addition, whenever the masculine gender is used, it shall include the feminine and the neuter wherever appropriate. ARTICLE VII - Amendments These By-Laws may be altered, amended or repealed, in whole or in part, by the stockholders at any annual or special meeting by vote of the holders of a majority in interest of all stock issued and outstanding and entitled to vote. No change in the date of the annual meeting may be made within sixty (60) days before the date fixed in these By-Laws for such meeting. The nature or substance of the proposed alterations, amendment or repeal shall be stated in the notice of the meeting. 19 These By-Laws may also be amended from time to time by vote of the Board of Directors of the corporation, with the exception of any provision relating to rights, powers or duties of the stockholders of the corporation or any provision which by law, the Articles of Organization or these By-Laws requires action by the stockholders. A true copy. ATTEST: /s/ [Signature not legible] ------------------------------ Clerk 20 T3B-69 By-Laws Amendment Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by--laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, be shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by--laws of the corporations listed on Exhibits A and B attached hereto are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co--Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J.L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. RICHARD ABLON /s/ SCOTT G. MACKIN - ---------------------- ---------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ BRUCE W. STONE ---------------------- BRUCE W. STONE 22 T3B-69 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverbill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverbill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 24 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. 25 HAVERHILL POWER, INC. LMI, INC. OGDEN OMEGA LEASE, INC. Action by Unanimous Consent in Writing of of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990 The undersigned, constituting the holder of all the outstanding shares of Haverhill Power, Inc., LMI, Inc., and Ogden Omega Lease, Inc. (collectively, the "Corporation"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of the Corporations be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of the Corporations to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott G. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS OF HAVERHILL, INC. By: Scott G. Mackin ------------------------------ Scott G. Mackin First Executive Vice President 26 EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. 27 Delaware The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA SECURE SERVICES, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-FIFTH DAY OF AUGUST, A.D. 1986, AT 3 O'CLOCK P.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN ENVIRONMENTAL SERVICES, INC." TO "OGDEN WASTE TREATMENT SERVICES, INC.", FILED THE THIRD DAY OF JANUARY, A. D. 1992, AT 12:30 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE FOURTH DAY OF MAY, A.D. 1998, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN WASTE TREATMENT SERVICES, INC." TO "COVANTA SECURE SERVICES, INC.", FILED THE FOURTEENTH DAY OF MARCH, A. D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. ___________________________________________ Harriet Smith Windsor, Secretary of State CERTIFICATE OF INCORPORATION OF OGDEN ENVIRONMENTAL SERVICES, INC. 1. The name of the corporation is: OGDEN ENVIRONMENTAL SERVICES, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is (One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars ($100.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: J. L. Austin Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 25th day of August, 1986. J. L. Austin ------------------------------------ CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION Ogden Environmental Services, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That the Board of Directors of said corporation, by the unanimous written consent of its members, filed with the minutes of the Board, adopted resolution proposing and declaring advisable the following amendment to the Certificate of Incorporation of said corporation: "RESOLVED, that the certificate of Incorporation of Ogden Environmental Services, Inc. be amended by changing the first Article thereof so that, as amended, said Article shall be and read as follows: `1. The name of the corporation is: OGDEN WASTE TREATMENT SERVICES, INC.'" SECOND: That in lieu of a meeting and vote of stockholders, the stockholders have given unanimous written consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware. THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said Ogden Environmental Services, Inc. has caused this certificate to be signed by Jeffrey R. Horowitz, its Senior Vice President, and attested by Louis D. Montresor, its Assistant Secretary, this 2nd day of January, 1992. OGDEN ENVIRONMENTAL SERVICES, INC. By: /s/ Jeffrey R. Horowitz ------------------------------- Jeffrey R. Horowitz Senior Vice President ATTEST: By: /s/ Louis D. Montresor ----------------------------- Louis D. Montresor Assistant Secretary 2 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN WASTE TREATMENT SERVICES, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1-15, 1996 Authorized Officer -------------------------- CERTIFICATE OF OWNERSHIP AND MERGER OF STOCKTON SOIL TREATMENT FACILITY, INC. (a California Corporation) INTO OGDEN WASTE TREATMENT SERVICES, INC. (a Delaware Corporation) It is hereby certified that: 1. Ogden Waste Treatment Services, Inc. [hereinafter sometimes referred to as the "Corporation"] is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding share of Common stock of Stockton Soil Treatment Facility, Inc., which is a business corporation of the State of California. 3. The laws of the jurisdiction of organization of Stockton Soil Treatment Facility, Inc. permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction. 4. The Corporation hereby merges Stockton Soil Treatment Facility, Inc. into the Corporation. 5. The following is a copy of the resolutions adopted on April 20, 1998 by the Board of Directors of the Corporation to merge the said Stockton Soil Treatment Facility, Inc. into the Corporation: RESOLVED that Stockton Soil Treatment Facility, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers, and franchises of Stockton Soil Treatment Facility, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Stockton Soil Treatment Facility, Inc. in its name. RESOLVED that this Corporation assume all of the obligations of Stockton Soil Treatment Facility, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware, by the laws of the State of California, and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the jurisdiction of organization of Stockton Soil Treatment Facility, Inc. and of this Corporation and in any other appropriate jurisdiction. Executed on April 27, 1998. OGDEN WASTE TREATMENT SERVICES, INC. By: /s/ Bruce W. Stone ------------------------------------ Bruce W. Stone, Executive Vice President 2 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN WASTE TREATMENT SERVICES, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN WASTE TREATMENT SERVICES, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA SECURE SERVICES, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March _____, 2001. _____________________________________ Name: Patricia Collins Title: Asst. Secretary DELAWARE THE FIRST STATE I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA GEOTHERMAL OPERATIONS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-SIXTH DAY OF NOVEMBER, A.D. 1990, AT 4:30 O'CLOCK P.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "ERCE HYDRO PARTNER I, INC." TO "OGDEN GEOTHERMAL OPERATIONS, INC." FILED THE FIFTEENTH DAY OF OCTOBER, A.D. 1991, AT 9 O`CLOCK A.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE TWENTY-SEVENTH DAY OF JANUARY, A.D. 1993, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT CHANGING ITS NAME FROM "OGDEN GEOTHERMAL OPERATIONS, INC." TO "COVANTA GEOTHERMAL OPERATIONS, INC.", FILED THE FOURTEENTH DAY OF MARCH, A. D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ------------------------------ Harriet Smith Windsor, Secretary of State 1 CERTIFICATE OF INCORPORATION OF ERCE HYDRO PARTNER I, INC. 1. The name of the corporation is: ERCE HYDRO PARTNER I, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Thousand Five Hundred (1,500) all of such shares shall be without par value. 5. The board of directors is authorized to make, alter or repeal the by -- laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: 2 M.C. Kinnamon Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator herein-before named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware. do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set ay hand this 26th day of November, 1990. /s/ M. C. Kinnamon ------------------------ M. C. Kinnamon 3 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF ERCE HYDRO PARTNER I, INC. ERCE Hydro Partner I, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: The amendment to the Corporation's Certificate of Incorporation set forth in the following resolution approved by the Corporations Board of Directors and stockholders was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware: That the Corporation amend its Certificate of Incorporation as follows: 1. The name of the corporation is: Ogden Geothermal Operations, Inc. IN WITNESS WHEREOF, ERCE Hydro Partner I, Inc. has caused this Certificate to be signed and attested by its duly authorized officer, this 30th day of September, 1991. ERC HYDRO PARTNER I, INC. /s/ J. Mark Elliott, President -------------------------------- J. Mark Elliott, President ATTEST: /s/ Sharon G. Province -------------------------------- Sharon G. Province, Secretary 4 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OGDEN GEOTHERMAL OPERATIONS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN GEOTHERMAL OPERATIONS, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 32 Loockerman Square, Suite L-100, City of Dover 19901, County of Kent. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on Jan. 11, 1993. /s/ Peter Allen -------------------------------- Peter Allen, Vice-President Attest: /s/ J.L. Effinger - ------------------------------- J.L. Effinger, Asst. Secretary 5 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN GEOTHERMAL OPERATIONS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN GEOTHERMAL OPERATIONS, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA GEOTHERMAL OPERATIONS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March,2001. /s/ Patricia Collins ----------------------- Name: Patricia Collins Title: Asst. Secretary 6 DELAWARE PAGE 1 THE FIRST STATE I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA POWER EQUITY CORPORATION" AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE THIRTIETH DAY OF NOVEMBER, A.D. 1999, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "GEOTHERMAL POWER, INC." TO "OGDEN POWER EQUITY CORPORATION", FILED THE TWENTY-SIXTH DAY OF JULY, A.D. 1994, AT 12:30 O'CLOCK P.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN POWER EQUITY CORPORATION" TO "COVANTA POWER EQUITY CORPORATION", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-NINTH DAY OF MAY, A.D. 2001, AT 9 O'CLOCK A.M. CERTIFICATE OF CORRECTION, FILED THE TWENTY-SECOND DAY OF JUNE, A.D. 2001, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE FIFTH DAY OF JULY, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID /s/ Harriet Smith Windsor ----------------------------------------- Harriet Smith Windsor, Secretary of State 2214964 B100H AUTHENTICATION: 2951557 040135479 DATE: 02-25-04 1 DELAWARE PAGE 2 THE FIRST STATE CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ------------------------------------------ Harriet Smith Windsor, Secretary of State 2214964 B100H AUTHENTICATION: 2951557 040135479 DATE: 02-25-04 2 CERTIFICATE OF INCORPORATION OF GEOTHERMAL POWER, INC. Article I Name of Corporation The name of the Corporation is Geothermal Power, Inc. Article II Registered Office The registered office of the Corporation in the State of Delaware shall be at 32 Loockeman SQ. Suite L-l00, City of Dover, County of Kent. The name of its registered agent in charge thereof shall be The Prentice-Hall Corporation System, Inc. Article III Purposes The purposes of the Corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware, provided, however, the Corporation may not engage in any commercial activity other than to acquire and manage either directly or indirectly through one or more other corporations or partnerships an equity interest in a binary geothermal power plant. Article IV Stock A. The aggregate number of shares which the Corporation is authorized to issue is 1,000 shares of Class A common stock (par value $1.00 each) and 250 shares of Class B common stock (par value $.0l each). B. The preferences, limitations and relative rights of the holders of the Corporation's Class A common stock are as follows: 1. Holders of Class A common stock shall be entitled to nominate and elect all directors of the Corporation except for the one director nominated and elected by the holders of the Corporation's Class B common stock. 2. The holders of Class A common stock shall be subject to assessment of additional capital funds if the Board of Directors of the Corporation shall have assessed the holders of Class A and Class B common stock on an equal per share (or pro rata) basis to cover any losses of or capital contributions to the 3 partnership in which the Corporation has a direct or indirect interest (presently known as Second Imperial Geothermal Company). This assessment shall be valid and binding regardless of whether the holders of the Corporation's Class B common stock make the election authorized in Article IV, Paragraph B.6(ii) of this Certificate of Incorporation. C. The preferences, limitations and relative rights of the holders of the Corporation's Class B common stock are as follows: 1. Holders of Class B common stock shall not be entitled to vote on any matter presented to the stockholders for a vote pursuant to the General Corporation Law of Delaware or the Certificate of Incorporation or Bylaws of the Corporation except as provided in Article IV, Paragraph B.1 or Article IV, Paragraph 8.4 of this Certificate of Incorporation or as otherwise required by the General Corporation Law of Delaware. Holders of Class B common stock, voting as a class, shall be entitled to (i) to nominate and elect one director of the Corporation, and (ii) to vote on any proposed amendment to Article III of this Certificate of Incorporation. 2. Holders of Class B common stock shall be entitled to participate on an equal per-share (pro rata) basis with the holders of Class A common stock in any dividends or other distributions to the stockholders of the Corporation. 3. The Corporation shall redeem all of the outstanding Class B common stock for an aggregate of One Dollar ($1.00) on or within ten days after January 1, 1992 unless prior to that date the partnership in which the Corporation has a direct or indirect interest (presently known as Second Imperial Geothermal Company) has closed on financing (i) to construct a power plant to supply power pursuant to the contract between Second Imperial Geothermal Company and Southern California Edison Company dated April 16, 1985, as amended, together with any extensions, renewals, modifications or restatements thereof or (ii) to acquire the San Diego Gas and Electric Company's binary power plant located on the Heber Geothermal Reservoir in California, provided that the contract between Second Imperial Geothermal Company and Southern California Edison Company dated April 16, 1985, as amended, together with any extensions, renewals, modifications or restatements thereof, has expired or otherwise terminated by December 31, 1991. This Article IV, Paragraph B.3 shall lapse and have no further effect in the event of the closing on such financing. 4. After December 31, 1994, the Corporation shall have the right, but not the obligation, with the consent of the holders of a majority of the outstanding shares of Class B common stock, to redeem all of the outstanding shares of Class B common stock for cash in an amount equal to the fair market value 4 of the percentage equity interest in the Corporation represented by the Class B common stock. 5. Shares of Class B common stock, once issued by the Corporation, may not be transferred or sold to anyone other than the Corporation, or ERC Environmental and Energy Services Co., Inc. (ERCE), or without the prior written consent of ERCE, which shall not unreasonably be withheld, to any other party. There shall be no obligation on the part of the Corporation or ERCE to purchase said shares. 6. Provided that the partnership in which the Corporation has a direct or indirect interest (presently known as Second Imperial Geothermal Company) has closed on financing (i) to construct a power plant to supply power pursuant to the contract between Second Imperial Geothermal Company and Southern California Edison Company dated April 16, 1985, as amended, together with any extensions, renewals, modifications or restatements thereof or (ii) to acquire the San Diego Gas and Electric Company's binary power plant located on the Heber Geothermal Resource in California, the holders of Class B common stock shall be subject to assessment of additional capital funds if: (i) The Board of Directors of the corporation shall have assessed the holders of Class A and Class B common stock on an equal per-share (or pro rata) basis to cover any losses of or capital contributions to the partnership in which the Corporation has a direct or indirect interest (presently known as Second Imperial Geothermal Company); and (ii) The following exemption from said assessment does not apply: the holders of Class B common stock shall be exempt from said assessment if they have surrendered to the Corporation the number of shares equal to the lesser of (A) the number of shares of Class B common stock not paying the assessment, or (B) that number of shares of Class B common stock determined by multiplying (a) a fraction, (1) the numerator of which shall be the number of shares of Class B common stock not paying the assessment times the per-share assessment and (2) the denominator of which shall be the fair market value of that percentage of equity interest which is equal to the percentage of indirect ownership held by the holders of Class B common stock in the partnership in which the Corporation has a direct or indirect interest (presently known as Second Imperial Geothermal Company), which value, exclusively for the purpose of this Article IV, Paragraph B.6(ii) of the 5 Certificate of Incorporation, shall be determined by the Board of Directors, acting in good faith, and said determination shall be conclusive for this purpose, times (b) the number of shares of Class B common stock not paying the assessment. If within thirty days following the date selected by the Board of Directors as the date for payment of any assessment made pursuant to Article IV, Paragraph B.6 of the Certificate of Incorporation, the holder(s) of any Class B common stock have neither paid the assessment nor surrendered the appropriate number of Class B shares required to claim the exemption from such assessment, that number of Class B common stock shares which would have been surrendered to claim the exemption from the assessment shall automatically be cancelled and shall revert to the Corporation as treasury shares. Article V Preemptive Rights Shareholders shall have preemptive rights. No additional shares of Class A common stock shall be issued unless the Corporation shall have first offered to issue to the holders of Class B common stock, on the same terms and conditions as such proposed issuance of Class A common stock, additional shares of Class B common stock in an amount sufficient to permit the holders of the Class B common stock to maintain their percentage interest in the Corporation following such issuance of Class A common stock. In response to such offer, the holders of the Class B common stock may elect to purchase all or any portion of the offered shares. No amendment shall be made to Article IV, Paragraph A, of this Certificate of Incorporation that would result in there being an insufficient number of authorized shares of Class B common stock to comply with this Article V. Article VI Regulation of Internal Affairs Provisions for the regulation of the internal affairs of the Corporation, in addition to those set forth in Article IV of the Certificate of Incorporation, shall be set forth in the Bylaws of the Corporation as they may from time to time be amended. Article VII Board of Directors A. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, and the Directors need not be elected by written ballot unless such a requirement is imposed by the Bylaws of the Corporation. B. The initial Board of Directors shall consist of the following persons, whose respective mailing addresses are as follows: 6 Name Mailing Address J. Mark Elliott 3211 Jermantown Road Fairfax, Virginia 22030 John E. Gray 3211 Jermantown Road Fairfax, Virginia 22030 John F. Walter 3211 Jermantown Road Fairfax, Virginia 22030 Article VIII Provisions for the Management of the Business The following provisions shall govern the management of the business and the conduct of the affairs of the Corporation, and it is expressly provided that they are intended to be in furtherance and not in limitation or exclusion of the powers conferred by the laws of the State of Delaware: a. The Board of Directors is expressly authorized to make, amend and repeal the Bylaws of the Corporation. b. Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation. 7 c. The Corporation reserves the right to alter, amend or repeal any provision contained in this Certificate of Incorporation in the manner now or hereinafter prescribed by the laws of the State of Delaware. All rights herein conferred are granted subject to this reservation. Article IX Liability No Director shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as a Director, except for any matter in respect of which such Director shall be liable under Section 174 of the General Corporation Law of Delaware or any amendment thereto or successor provision thereto or shall be liable by reason that, in addition to any and all other requirements for such liability, he or she (i) shall have breached his or her duty of loyalty to the corporation or its stockholders, (ii) shall not have acted in good faith or, in failing to act, shall not have acted in good faith, (iii) shall have acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law or (iv) shall have derived an improper personal benefit. Neither the amendment nor repeal of this Article IX, nor the adoption of any provision of the Certificate of Incorporation inconsistent with this Article IX shall eliminate or reduce the affect of this Article IX in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article IX would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. If the General Corporation Law of Delaware is hereafter amended to permit further elimination or limitation of the personal liability of Directors, then the liability of each Director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended. Article X Indemnification The Corporation shall indemnify each of its officers and directors, whether or not then in office (and his or her personal representative, executor, administrator and heirs) against all reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any litigation to which he or she may have been made a party because he or she is or was a director or officer of the Corporation. He or she shall have no right to reimbursement, however, in relation to matters as to which he or she has been adjudged liable to the Corporation for negligence or misconduct in the performance of his or her duties. The right to indemnity for expenses shall also apply to expenses or suits which are compromised or settled if the court having jurisdiction of the action shall approve such settlement. 8 The foregoing right of indemnification shall be in addition to, and not exclusive of, all other rights to which such director or officer may be entitled, and shall not be construed as a limitation upon the power of the Corporation to grant indemnity to the full extent permitted by law. Article XI Incorporator The name and mailing address of the incorporator are as follows: Name Mailing Address John H. Quinn, Jr. 1730 K Street, N.W., Suite 700 Washington, D.C. 20006-3898 IN WITNESS WHEREOF, the undersigned has made, signed and acknowledged this Certificate of Incorporation this 29th day of November, 1989. /s/ John H. Quinn, Jr. ---------------------------------- John H. Quinn, Jr. 9 AMENDMENT TO CERTIFICATE OF INCORPORATION OF GEOTHERMAL POWER. INC. Geothermal Power, Inc.. a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: The amendment to the Corporation's Certificate of Incorporation set forth in the following resolution approved by the Corporation's Board of Directors and stockholders was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware: That the Corporation amend its Certificate of Incorporation as follows: Article I Name of Corporation The name of the corporation is Ogden Power Equity Corporation. IN WITNESS WHEREOF, Geothermal Power, Inc. has caused this Amendment to be signed by its duly authorized officers, this 15th day of July, 1994. GEOTHERMAL POWER, INC. /s/ John F. Walter ------------------------------- John F. Walter, Vice President ATTEST: /s/ Sharon G. Province ------------------------------- Sharon G. Province, Secretary 10 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN POWER EQUITY CORPORATION It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN POWER EQUITY CORPORATION. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA POWER EQUITY CORPORATION 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March 2001. /s/ Patricia Collins ------------------------ Name: Patricia Collins Title: Asst. Secretary STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/20O1 010126399 - 2214964 11 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 05/29/2001 010253929 - 2214964 CERTIFICATE OF OWNERSHIP AND MERGER OF Ogden Energy Channelview Holdings, Inc. SIGC Holdings, Inc. (Delaware corporations) INTO Covanta Power Equity Corporation (a Delaware corporation) It is hereby certified that: 1. Covanta Power Equity Corporation hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of each class of the stock Ogden Energy Channelview Holdings, Inc. and SIGC Holdings. Inc. which is also a business corporation of the State of Delaware. 3. On April 30, 2001, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Energy Channelview Holdings, Inc. and SIGC Holdings, Inc. into the Corporation: RESOLVED that Ogden Energy Channelview Holdings, Inc. and SIGC Holdings, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Energy Channelview Holdings, Inc. and SIGC Holdings, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Energy Channelview Holdings, Inc. and SIGC Holdings, Inc. in its name. 12 RESOLVED that this Corporation shall assume all of the obligations of Ogden Energy Channelview Holdings, Inc. and SIGC Holdings, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the law; of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be upon filing. Executed on May 16, 2001 Covanta Power Equity Corporation By: /s/ Jeffrey R. Horowitz ------------------------------- Jeffrey R. Horowitz, Secretary 13 CERTIFICATE OF CORRECTION OF CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN ENERGY CHANNELVIEW HOLDINGS, INC. It is hereby certified tint: 1. The name of the corporation (hereinafter called the "corporation") is Ogden Energy Channelview Holdings, Inc. 2. The Certificate of Ownership and Merger of the corporation, which was filed by the Secretary of State of Delaware on May 29, 2001, is hereby corrected. 3. The inaccuracy to be corrected in said instrument is as follows: The corporation as a parent company was merged prior to its subsidiary. 4. The portion of the instrument in corrected form is as follows: Ogden Energy Channelview Holdings, Inc. should not be extinguished. Signed on June 8, 2001 /s/ Bruce W. Stone ---------------------------------------- Bruce W. Stone, Executive Vice President STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 06/22/2001 010303410 - 2214964 14 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 07/05/2001 010323403 - 2214964 CERTIFICATE OF OWNERSHIP AND MERGER OF Ogden Energy Channelview Holdings, Inc. (Delaware corporations) INTO Covanta Power Equity Corporation (a Delaware corporation) It is hereby certified that: 1. Covanta Power Equity Corporation hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of each class of the stock Ogden Energy Channelview Holdings, Inc. which is also a business corporation of the State of Delaware. 3. On April 30, 2001, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Energy Channelview Holdings. Inc. into the Corporation: RESOLVED that Ogden Energy Channelview Holdings, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Energy Channelview Holdings, Inc. be vested in and held end enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Energy Channelview Holdings, Inc. in its name. 15 RESOLVED that this Corporation shall assume all of the obligations of Ogden Energy Channelview Holdings, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary ads within the State of Delaware and within any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be upon filing. Executed on July 3, 2001 Covanta Power Equity Corporation By: /s/ Jeffrey R. Horowitz ------------------------------- Jeffrey R. Horowitz, Secretary 16 DELAWARE PAGE 1 THE FIRST STATE I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA RRS HOLDINGS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE EIGHTEENTH DAY OF NOVEMBER, A.D. 1992, AT 3 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "RRS HOLDINGS INC." TO "COVANTA RRS HOLDINGS, INC.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ------------------------------------------ Harriet Smith Windsor, Secretary of State 2316649 8100H AUTHENTICATION: 2951593 040135507 DATE: 02-25-04 1 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 03:00 PM 11/18/1992 923235482 - 2316649 CERTIFICATE OF INCORPORATION -of- RRS HOLDINGS INC. -00000- FIRST:The name of the corporation is RRS Holdings Inc. (hereinafter sometimes called the "Corporation"). SECOND: The address of the Corporation's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. THIRD:The nature of the business or purposes to be conducted or promoted are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 1,000 and the par value of each of such shares is One Dollar ($1.00). FIFTH:The name and mailing address of the incorporator is as follows: Jared L. Landaw Winthrop, Stimson, Putnam & Roberts One Battery Park Plaza New York, New York 10004-1490 SIXTH:The following additional provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for the creation, definition, limitation and regulation of the powers of the Corporation, the directors and the stockholders: 1. Election of directors need not be by written ballot. The Board of Directors shall have power to make, alter, amend and repeal the By-Laws of the Corporation and to fix the compensation of directors for services in any capacity. 2. Any director may be removed at any time, with or without cause, upon the affirmative vote of the holders of a majority of the stock of the Corporation at that time having voting power for the election of directors. 2 3. Any corporate action, with respect to which the vote of the stockholders at a meeting thereof is required or permitted by any provision of the General Corporation Law of the State of Delaware or of the Certificate of Incorporation or the By-Laws of the Corporation, is authorized to be taken and may be taken without that vote and meeting, and that vote and meeting may be dispensed with, with the written consent of the holders of a majority (or, if with respect to a particular corporate action where the General Corporation Law of the State of Delaware or the certificate of Incorporation or the By-Laws of the Corporation specifies a greater percentage, by the holders of that greater percentage) of the stock that would have been entitled to vote upon that action if a meeting were held. Prompt notice shall be given to all stockholders of the taking of any corporate action pursuant to the provisions of this paragraph 3 unless that action has been consented to in writing by the holders of all of the stock that would have been entitled to vote upon that action if a meeting were held. 4. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. SEVENTH: The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Corporation, by reason of the fact that he, or the person whose legal representative he is, (1) is or was a stockholder, director, officer, employee or agent of the Corporation (including the incorporator thereof), or (2) is or was serving at the request of the Corporation as a director, officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise, or (3) is or was a director, officer or employee of the Corporation serving at the request of the Corporation as a fiduciary of an employee benefit plan or trust maintained for the benefit of employees of the Corporation or employees of any such other enterprise, partnership, joint venture, trust, or other enterprise, against judgments, fines, penalties, amounts paid in settlement, and expenses, including attorneys' fees, actually and reasonably incurred by him and the person whose legal representative he is, in connection with such action, suit or proceeding, or any appeal therein, to the fullest extent permitted by law. Expenses which may be indemnifiable under this Section incurred in defending an action, suit or proceedings may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors upon agreement by or on behalf of the stockholder, director, officer, employee or agent, or his legal representative, to repay such amount if he is later found not entitled to be indemnified by the Corporation as authorized in this Article Seventh. 3 The Corporation shall not indemnify any stockholder, director, officer, employee or agent against judgments, fines, amounts paid in settlement and expenses, including attorneys' fees, to an extent greater than that authorized by this Article Seventh but the Corporation may procure insurance providing greater indemnification and may share the premium cost with any stockholder, director, officer, employee or agent on such basis as may be agreed upon. IN WITNESS WHEREOF, I, the undersigned, being the incorporator named above, have hereunto set my hand and seal this 18th day of November, 1992. /s/ Jared L. Landaw --------------------------- Jared L. Landaw Sole Incorporator 4 CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is RRS HOLDINGS INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on January 15, 1996 /s/ --------------------------- Authorized Officer 5 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF RRS HOLDINGS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is RRS HOLDINGS, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA RRS HOLDINGS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins -------------------------- Name: Patricia Collins Title: Asst. Secretary STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/20O1 010126571 - 2316649 6 DELAWARE PAGE 1 THE FIRST STATE I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA GEOTHERMAL OPERATIONS HOLDINGS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-SECOND DAY OF SEPTEMBER, A.D. 1999, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "GEOTHERMAL OPERATIONS HOLDINGS, INC." TO "COVANTA GEOTHERMAL OPERATIONS HOLDINGS, INC. ", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor ----------------------------------------- Harriet Smith Windsor, Secretary of State 1 CERTIFICATE OF INCORPORATION OF GEOTHERMAL OPERATIONS HOLDINGS, INC. The undersigned, a natural person(1) for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter l, Title 8 of the Delaware Code and to acts amendatory thereof and supplemental thereto. and known, identified and referred to as the "General Corporation Law of the State of Delaware), hereby certifies that: FIRST: The name of the corporation (hereinafter called. The "corporation") is Geothermal Operations Holdings, Inc. SECOND: the address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 1013 Centre Road, City of Wilmington, Wilmington, Delaware, County of New Castle, 19805; and the name of the registered agent of the corporation in the State of Delaware at such address is Corporation Service Company. THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: the total number of shares of stock which the corporation shall have authority to issue is One Hundred (100). The par value of each of such shares is One Dollar and No Cents ($1.00). All such shares are of one class and are shares of Common Stock. Each outstanding share of which, will be entitled to one vote. FIFTH: The name and the mailing address of the incorporator are as follows: NAME MAILING ADDRESS Jane A. Gross 40 Lane Road Fairfield. Now Jersey 07007 SIXTH: The corporation is to have perpetual existence. SEVENTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be supplemented and amended. 2 EIGHTH: From time to time any of the provisions of this certificate of incorporation may be amended, altered, or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the corporation by this certificate of incorporation are granted subject to the provisions of this Article Eighth. Signed on September 21, 1999. Incorporator /s/ Jane A. Gross --------------------- Jane A. Gross 3 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF GEOTHERMAL OPERATIONS HOLDINGS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is GEOTHERMAL OPERATIONS HOLDINGS, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation) is COVANTA GEOTHERMAL OPERATIONS HOLDINGS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the Genera! Corporation Law of the State of Delaware, IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins --------------------------------- Name: Patricia Collins Title: Assistant Secretary 4 EX-99.T3B70 148 exhibit_t3b-70.txt Exhibit T3B-70 BYLAWS of MAMMOTH GEOTHERMAL COMPANY ARTICLE I Principal Executive Office The principal executive office of the corporation is located at Suite 608, 6055 East Washington Boulevard, Commerce, California 90040. ARTICLE II Meetings of Shareholders Section 1. Annual Meeting. The regular annual meeting of shareholders of the corporation shall be held on the 4th Tuesday of March of each year, at the hour of 9:30 a.m., provided that if the day is a legal holiday, then at the same time on the next day which is not a legal holiday. At the regular annual meeting of shareholders, directors shall be elected and any other business may be transacted which is within the powers of shareholders. Section 2. Special Meetings. Special meetings of shareholders may be called by the board of directors, or by the chairman of the board, if there be such an officer, or by the president or by the holders of shares entitled to cast not less than ten percent (10%) of the votes at `such meeting. 1 Section 3. Place of Meetings. Each annual or special meeting of shareholders shall be held at such location as may be determined by the board of directors, or if no determination is made at such place as may be determined by the chief executive officer or by any other officer authorized by the board of directors or by the chief executive officer to make such determination, and if no location is so determined at the principal executive office of the corporation. Section 4. Notice of Meetings. Notice of each annual or special meeting of shareholders shall be given as required by law and, subject to the requirements of applicable law, shall contain such information, and shall be given to such persons at such time and in such manner as the board of directors shall determine or, if no determination is made, as the chief executive officer or any other officer so authorized by the board of directors or by the chief executive officer shall determine. Section 5. Waiver of Notice. The transactions of any meeting of shareholders, however called and noticed, shall be as valid as though in a meeting duly held after regular call and notice if a quorum be present and before or after the meeting each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. Section 6. Conduct of Meetings. Subject to the requirements of applicable law, all annual and special meetings of shareholders shall be conducted in accordance with such rules and procedures as the board of directors may determine and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any 2 annual or special meeting of shareholders shall be designated by the board of directors and, in the absence of any such designation, shall be the chief executive officer of the corporation or other person designated by the chief executive officer. Section 7. Action Without Meeting. Except as may be prohibited by the California General Corporation Law or by the Articles of Incorporation or by these bylaws, any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If any such action is taken without a meeting, notice shall be given as required by law. ARTICLE III Board of Directors The authorized number of directors of the corporation shall not be less than three (3) nor more than seven (7) until changed by a duly adopted bylaw amending this Section 1. Section 1. The number of directors shall be fixed at four (4) until changed, within the limits specified above, by a duly adopted bylaw amending this Section 1 or by the Board of Directors. A majority of the fixed number of directors shall constitute a quorum. 3 ARTICLE IV Meetings of Directors Section 1. Regular Meetings. Regular quarterly meetings of the board of directors shall be held on such dates as shall be fixed by the board of directors. Immediately following each annual meeting of shareholders, there shall be a regular meeting of the board of directors of the corporation for the purposes of organization, election of officers and the transaction of the other business. Notice of regular meetings of the board of directors is not required. Section 2. Special Meetings. Special meetings of the board of directors for any purpose may be called at any time by the chairman of the board, if there be such an officer, or by the president or by any vice president or by any two directors. Notice of the time and place of special meetings shall be given personally to each director, or communicated by telephone, or sent to each director by mail or other form of written communication. In case of notice by mail, telegraph or other form of written communication (i) it shall be deposited in the United States mail or Pacific Enterprises company mail or delivered to the telegraph company in the city in which the principal executive office of the corporation is located at least twenty-four (24) hours prior to the time of the meeting or (ii) delivered to the director's regular business office during normal business hours at least four (4) hours prior to the time of the meeting. In case notice is given personally or by telephone, it shall be given at least four (4) hours prior to 4 the time of the meeting. Such mailing, telegraphing, delivering or giving of personal notice shall be legal notice to the directors. Section 3. Place of Meetings. Each regular or special meeting of the board of directors shall be held at the location determined as follows: The board of directors may designate any place, within or without the state of California, for the holding of any meeting; if no such designation is made, at such location as is designated by the person or persons calling the meeting; and if neither of such designations is made, at the principal executive office of the corporation. Section 4. Conduct of Meetings. Subject to the requirements of applicable law, all regular and special meetings of the board of directors shall be conducted in accordance with such rules and procedures as the board of directors may approve and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any regular or special meeting shall be the chief executive officer or any other person that the board of directors may designate. Section 5. Conference Telephones. Members of the board of directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. Participation in a meeting pursuant to this Section 5 constitutes presence in person at such meeting. Section 6. Action Without Meeting. Any action required or permitted to be taken by the board of directors may be taken without a meeting if all members of the board of 5 directors shall individually or collectively consent in writing to such action. Such written consent shall be filed with the minutes of the proceedings of the board of directors. Such action by written consent shall have the same force and effect as a unanimous vote of directors. Committees of the board of directors may not take action by written consent without a meeting. ARTICLE V Officers Section 1. Officers. The officers of the corporation shall be a president, a vice president, a secretary and a treasurer. The corporation may have, at the discretion of the board of directors, a chairman of the board, additional vice presidents, assistant secretaries, assistant treasurers, aid such other officers as may be necessary or advisable for the conduct of the business. One person may hold two or more offices. Section 2. Election. The officers shall be elected by the board of directors and shall hold office at the pleasure of the board of directors. In the absence of further action by the board of directors, all officers shall hold office until the election, qualification and acceptance of office by their respective successors. 6 ARTICLE VI Chairman of the Board The Chairman of the Board, if there be such an officer, shall exercise and perform such powers and duties as may be assigned to him by the board of directors. ARTICLE VII President Subject to supervisory powers as may be given by the board of directors to the chairman of the board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall have all of the powers and shall perform all of the duties which are inherent in the office of the president. He shall have general charge and supervision of the corporation's business and all of its officers, agents and employees. He shall fix the compensation of the remaining officers of the corporation, other than the chairman, if there be one, and shall have the additional powers and perform further duties as may be prescribed by the board of directors. ARTICLE VIII Vice Presidents In the president's absence, disability or refusal to act, the vice presidents in order of their rank shall perform all of the duties of the president and when so acting shall have all the president's powers and be subject to all the restrictions upon the president. The vice presidents shall have other powers and perform additional duties as may be prescribed by the board of directors or by the chief executive officer. 7 ARTICLE IX Secretary Section 1. Duties. The secretary shall, at the principal executive office, a book of minutes of all meetings of directors and of shareholders, with the time and place of holding, whether regular or special, and if special how authorized and the notice given, the names of those present at meetings of directors, the number of shares represented in person or by written proxy at meetings of shareholders and the proceedings. The secretary shall at the principal executive office a share register showing the names of the shareholders and their addresses, the number of shares and classes of shares held by each, the number and date of certificate issued for the shares and the number and date of cancellation of every certificate surrendered. The secretary shall give notice of all the meetings of the shareholders and of the board of directors required by the bylaws or by law, and he shall the seal of the corporation in safe custody and shall have other powers and perform additional duties as may be prescribed by the board of directors, or by the chief executive officer. Section 2. Agent for Service of Process. Unless the board of directors shall designate another person to be the agent for service of process in California, the secretary shall be the agent for service of process. Section 3. Assistant Secretaries. It shall be the duty of the assistant secretaries to assist the secretary in the performance of his duties. In the absence or disability of the secretary, his duties may be performed by an assistant secretary. 8 ARTICLE X Treasurer and Chief Financial Officer Section 1. Chief Financial Officer. Unless the board of directors shall designate another officer to be the chief financial officer, the treasurer shall be the chief financial officer. Section 2. Duties. The treasurer shall have custody and account for all funds of the corporation which may be deposited with him or in banks or other places of deposit. He shall disburse funds which have been duly approved for disbursement. He shall sign notes, bonds or other evidences of indebtedness for the corporation as the board of directors may authorize. He shall perform other duties which may be assigned by the board of directors or by the chief executive officer. Section 3. Assistant Treasurers. It shall be the duty of the assistant treasurers to help the treasurer in the performance of his duties. In the absence or disability of the treasurer, his duties may be performed by an assistant treasurer. ARTICLE XI Indemnification of Agents of the Corporation; Purchase of Liability Insurance Section 1. For the purposes of this Article, "agent" means any person who is or was a director, officer, employee or other agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, 9 joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the Corporation or of another enterprise at the request of such predecessor corporation; "proceeding" means any threatened pending or completed action or proceeding, whether civil, criminal, administrative, or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 4 or paragraph (c) of Section 5 of this Article. Section 2. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed proceeding (other than an action by or in, the right of the Corporation to procure a judgment in its favor) by reason of the fact that such person is or was an agent of the Corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the Corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the Corporation or that the person had reasonable cause to believe that the person's conduct was unlawful. 10 Section 3. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was an agent of the Corporation, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith, in a manner such person believed to be in the best interests of the Corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. No indemnification shall be made under this Section 3: (a) In respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation in the performance of such person's duty to the Corporation, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for the expenses which such court shall determine; (b) Of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval or (c) Of expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval. Section 4. To the extent that an agent of the Corporation has been successful on the merits in defense of any 11 proceeding referred to in Section 2 or 3 or in defense of any claim, issue or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith. Section 5. Except as provided in Section 4, any indemnification under this Article shall be made by the Corporation only if authorized in the specific case, upon a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in Section 2 or 3, by: (a) A majority vote of a quorum consisting of directors who are not parties to such proceeding; (b) Approval or ratification by the affirmative vote of a majority of the shares of the Corporation entitled to vote represented at a duly held meeting at which a quorum is present or by the written consent of holders of a majority of the outstanding shares entitled to vote, and by the affirmative vote or written consent of such greater proportion of the shares of any class or series as may be provided in the Articles of Incorporation for such action. For purposes of determining the required quorum of any meeting of shareholders called to approve or ratify indemnification of an agent and the vote or written consent required therefor, the shares owned by the person to be indemnified shall not be considered outstanding and shall not be entitled to vote thereon; or (c) The court in which such proceeding is or was pending, upon application made by the Corporation or the agent or the attorney or other person rendering services in connection 12 with the defense, whether or not such application by the agent, attorney or other person is opposed by the Corporation. Section 6. Expenses incurred in defending any proceeding may be advanced by the Corporation prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount unless it shall be determined ultimately that the agent is entitled to be indemnified as authorized in this Article. Section 7. This Article shall create a right of indemnification for each person referred to in this Article, whether or not the proceeding to which the indemnification relates arose in whole or in part prior to adoption of this Article, and in the event of the death of such agent, whether before or after initiation of such proceeding, such right shall extend to such person's legal representatives. This Article does not apply to any proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in such person's capacity as such, even though such person may also be an agent of the Corporation as defined in Section 1. Nothing contained in this Article shall limit any right to indemnification to which such a trustee, investment manager or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law other than this Article. In addition to the maximum extent permitted by applicable law, the right of indemnification hereby given shall not be exclusive of or otherwise, affect any other rights such agent may have to indemnification, whether by law or under any contract, insurance policy or otherwise. Section 8. No indemnification or advance shall be made under this Article, except as provided in Section 4 or 13 paragraph (c) of Section 5, in any circumstance where it appears: (a) That it would be inconsistent with a provision of the Articles of Incorporation, these ByLaws, a resolution of the shareholders or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement. Section 9. Upon determination by the Board of Directors, the Corporation may purchase and maintain insurance on behalf of any agent of the Corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not the Corporation would have the power to indemnify the agent against such liability under the provisions of this Article. ARTICLE XII Annual Reports The annual report to shareholders prescribed in Section 1501 of the California General Corporation Law is waived. 14 ARTICLE XIII Amendments to Bylaws Section 1. Shareholder Vote. New bylaws may be adopted or these bylaws may be amended or repealed by the vote of shareholders exercising a majority of the voting power represented by the outstanding shares, or by the written consent of shareholders exercising such voting powers. Section 2. Board of Directors Vote. Subject to the right of shareholders as provided in Section 1 of this Article XIII, bylaws may be adopted, amended or repealed by a majority of the board of directors, except a bylaw or amendment changing the authorized number of directors, a bylaw or amendment changing the power of the board of directors to fill a vacancy or vacancies occurring on the board of directors by reason of the removal of a director or directors, and any other bylaw or amendment which by law or by the articles of incorporation or by these bylaws may be adopted only by the shareholders. 15 EX-99.T3B71 149 exhibit_t3b-71.txt Exhibit T3B-71 BYLAWS of MAMMOTH GEOTHERMAL COMPANY ARTICLE I Principal Executive Office The principal executive office of the corporation is located at Suite 608, 6055 East Washington Boulevard, California 90040. ARTICLE II Meetings of Shareholders Section 1. Annual Meeting. The regular annual meeting of shareholders of the corporation shall be held on the 4th Tuesday of March of each year, at the hour of 9:30 a.m., provided that if the day is a legal holiday, then at the same time on the next day which is not a legal holiday. At the regular annual meeting of shareholders, directors shall be elected and any other business may be transacted which is within the powers of shareholders. Section 2. Special Meetings. Special meetings of shareholders may be called by the board of directors, or by the chairman of the board, if there be such an officer, or by the president or by the holders of shares entitled to cast not less than ten percent (10%) of the votes at such meeting. Section 3. Place of Meetings. Each annual or special meeting of shareholders shall be held at such location as may be determined by the board of directors, or if no determination is made at such place as may be determined by the chief executive officer or by any Other officer authorized by the board of directors or by the chief executive officer to make such determination, and if no location is so determined at the principal executive office of' the corporation. 1 Section 4. Notice of Meetings. Notice of each annual or special meeting of shareholders shall be given as required by law and, subject to the requirements of applicable law, shall contain such information, and shall be given to such persons at such time and in such manner as the board of directors shall determine or, if no determination is made, as the chief executive officer or any other officer so authorized by the board of directors or by the chief executive officer shall determine. Section 5. Waiver of Notice. The transactions of any meeting of shareholders, however called and noticed, shall be as valid as though in a meeting duly held after regular call and notice if a quorum be present and before or after the meeting each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. Section 6. Conduct of Meetings. Subject to the requirements of applicable law, all annual and special meetings of shareholders shall be conducted in accordance with such rules and procedures as the board of directors may determine and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any annual or special meeting of shareholders shall be designated by the board of directors and, in the absence of any such designation, shall be the chief executive officer of the corporation or other person designated by the chief executive officer. Section 7. Action Without Meeting. Except as may be prohibited by the California General Corporation Law or by the Articles of Incorporation or by these bylaws, any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum 2 number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If any such action is taken without a meeting, notice shall be given as required by law. ARTICLE III Board of Directors The authorized number of directors of the corporation shall not be less than three (3) nor more than five (5) until changed by a duly adopted bylaw amending this Section 1. Section 1. The number of directors shall be fixed at three (3) until changed, within the limits specified above, by a duly adopted bylaw amending this Section 1 or by the Board of Directors. A majority of the fixed number of directors shall constitute a quorum. ARTICLE IV Meetings of Directors Section 1. Regular Meetings. Regular quarterly meetings of the board of directors shall be held on such dates as shall be fixed by the board of directors. Immediately following each annual meeting of shareholders, there shall be a regular meeting of the board of directors of the corporation for the purposes of organization, election of officers and the transaction of the other business. Notice of regular meetings of the board of directors is not required. Section 2. Special Meetings. Special meetings of the board of directors for any purpose may be called at any time by the chairman of the board, if there be such an officer, or by the president or by any vice president or by any two directors. Notice of the time and place of special meetings shall be given personally to each director, or communicated by telephone, or sent to each director by mail or other form of written communication. In case of notice by mail, telegraph or other form of written communication (i) 3 it shall be deposited in the United States mail or Pacific Enterprises company mail or delivered to the telegraph company in the city in which the principal executive office of the corporation is located at least twenty-four (24) hours prior to the time of the meeting or (ii) delivered to the director's regular business office during normal business hours at least four (4) hours prior to the time of the meeting. In case notice is given personally or by telephone, it shall be given at least four (4) hours prior to the time of the meeting. Such mailing, telegraphing, delivering or giving of personal notice shall be legal notice to the directors. Section 3. Place of Meetings. Each regular or special meeting of the board of directors shall be held at the location determined as follows: The board of directors may designate any place, within or without the state of California, for the holding of any meeting; if no such designation is made, at such location as is designated by the person or persons calling the meeting; and if neither of such designations is made, at the principal executive office of the corporation. Section 4. Conduct of Meetings. Subject to the requirements of applicable law, all regular and special meetings of the board of directors shall be conducted in accordance with such rules and procedures as the board of directors may approve and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any regular or special meeting shall be the chief executive officer or any other person that the board of directors may designate. Section 5. Conference Telephones. Members of the board of directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. 4 Participation in a meeting pursuant to this Section 5 constitutes presence in person at such meeting. Section 6. Action Without Meeting. Any action required or permitted to be taken by the board of directors may be taken without a meeting if all members of the board of directors shall individually or collectively consent in writing to such action. Such written consent shall be filed with the minutes of the proceedings of the board of directors. Such action by written consent shall have the same force and effect as a unanimous vote of directors. Committees of the board of directors may not take action by written consent without a meeting. ARTICLE V Officers Section 1. Officers. The officers of the corporation shall be a president, a vice president, a secretary and a treasurer. The corporation may have, at the discretion of the board of directors, a chairman of the board, additional vice presidents, assistant secretaries, assistant treasurers, aid such other officers as may be necessary or advisable for the conduct, of the business. One person may hold two or more offices. Section 2. Election. The officers shall be elected by the board of directors and shall hold office at the pleasure of the board of directors. In the absence of further action by the board of directors, all officers shall hold office until the election, qualification and acceptance of office by their respective successors. ARTICLE VI Chairman of the Board The Chairman of the Board, if there be such an officer, shall exercise and perform such powers and duties as may be assigned to him by the board of directors. 5 ARTICLE VII President Subject to supervisory powers as may be given by the board of directors to the chairman of the board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall have all of the powers and shall perform all of the duties which are inherent in the office of the president. He shall have general charge and supervision of the corporation's business and all of its officers, agents and employees. He shall fix the compensation of the remaining officers of the corporation, other than the chairman, if there be one, and shall have the additional powers and perform further duties as may be prescribed by the board of directors. ARTICLE VIII Vice Presidents In the president's absence, disability or refusal to act, the vice presidents in order of their rank shall perform all of the duties of the president and when so acting shall have all the president's powers and be subject to all the restrictions upon the president. The vice presidents shall have other powers and perform additional duties as may be prescribed by the board of directors or by the chief executive officer. ARTICLE IX Secretary Section 1. Duties. The secretary shall, at the principal executive office, a book of minutes of all meetings of directors and of shareholders, with the time and place of holding, whether regular or special, and if special how authorized and the notice given, the names of those present at meetings of directors, the number of shares represented in person or by written proxy at meetings of shareholders and the proceedings. The secretary shall at the 6 principal executive office a share register showing the names of the shareholders and their addresses, the number of shares and classes of shares held by each, the number and date of certificate issued for the shares and the number and date of cancellation of every certificate surrendered. The secretary shall give notice of all the meetings of the shareholders and of the board of directors required by the bylaws or by law, and he shall the seal of the corporation in safe custody and shall have other powers and perform additional duties as may be prescribed by the board of directors, or by the chief executive officer. Section 2. Agent for Service Process. Unless the board of directors shall designate another person to be the agent for service of process in California, the secretary shall be the agent for service of process. Section 3. Assistant Secretaries. It shall be the duty of the assistant secretaries to assist the secretary in the performance of his duties. In the absence or disability of the secretary, his duties may be performed by an assistant secretary. ARTICLE X Treasurer and Chief Financial Officer Section 1. Chief Financial Officer. Unless the board of directors shall designate another officer to be the chief financial officer, the treasurer shall be the chief financial officer. Section 2. Duties. The treasurer shall have custody and account for all funds of the corporation which may be deposited with him or in banks or other places of deposit. He shall disburse funds which have been duly approved for disbursement. He shall sign notes, bonds or other evidences of indebtedness for the corporation as the board of directors may 7 authorize. He shall perform other duties which may be assigned by the board of directors or by the chief executive officer. Section 3. Assistant Treasurers. It shall be the duty of the assistant treasurers to help the treasurer in the performance of his duties. In the absence or disability of the treasurer, his duties may be performed by an assistant treasurer. ARTICLE XI Indemnification of Agents of the Corporation Purchase of Liability Insurance Section 1. For the purposes of this Article, "agent" means any person who is or was a director, officer, employee or other agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a foreign, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the Corporation or of another enterprise at the request of such predecessor corporation; "proceeding" means any threatened pending or completed action `or proceeding, whether civil, criminal, administrative, or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 4 or paragraph (c) of Section 5 of this Article. Section 2. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed proceeding (other than an action by or in, the right of the corporation to procure a judgment in its favor) by reason of the fact that such person is or was an agent of the Corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such 8 proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the Corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not presumption ion that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the Corporation or that the person had reasonable cause to believe that the person's conduct was unlawful. Section 3. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was an agent of the Corporation, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith, in a manner such person believed to be in the best interests of the Corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. No indemnification shall be made under this Section 3: (a) In respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation in the performance of such person's duty to the Corporation, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for the expenses which such court shall determine; (b) Of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval or 9 (c) Of expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval. Section 4. To the extent that an agent of the Corporation has been successful on the merits in defense of any proceeding referred to in Section 2 or 3 or in defense of any claim, issue or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith. Section 5. Except as provided in Section 4, any indemnification under this Article shall be made by the corporation only if authorized in the specific case, upon a determination that indemnification of the agent is proper in the circumstances because the, agent has met the applicable standard of conduct set forth in Section 2 or 3, by: (a) A majority vote of a quorum consisting of directors who are not parties to such proceeding; (b) Approval or ratification by the affirmative vote of a majority of the shares of the corporation entitled to vote represented at a duly held meeting at which a quorum is present or by the written consent of holders of a majority of the outstanding shares entitled to vote, and by the affirmative vote or written consent of such greater proportion of the shares of any class or series as may be provided in the Articles of Incorporation for such action. For purposes of determining the required quorum of any meeting of shareholders called to approve or ratify indemnification of an agent and the vote or written consent required therefor, the shares owned by the person to be indemnified shall not be considered outstanding and shall not be entitled to vote thereon; or (c) The court in which such proceeding is or was pending, upon application made by the Corporation or the agent or the attorney or other person rendering services in 10 connection with the defense, whether or not such application by the agent, attorney or other person is opposed by the Corporation. Section 6. Expenses incurred in defending any proceeding may be advanced by the Corporation prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount unless it shall be determined ultimately that the agent is entitled to be indemnified as authorized in this Article. Section 7. This Article shall create a right of indemnification for each person referred to in this Article, whether or not the proceeding to which the indemnification relates arose in whole or in part prior to adoption of this Article, and in the event of the death of such, agent, whether before or after initiation of such proceeding, such right shall extend to such person's legal representatives. This Article does not apply to any proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in such person's capacity as such, even though such person may also be an agent of the Corporation as defined in Section 1. Nothing contained in this Article shall limit any right to indemnification to which such a trustee, investment manager or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law other than this Article. In addition to the maximum extent permitted by applicable law, the right of indemnification hereby given shall not be exclusive of or otherwise, affect any other rights such agent may have to indemnification, whether by law or under any contract, insurance policy or otherwise. Section 8. No indemnification or advance shall be made under this Article, except as provided in Section 4 or paragraph (c) of Section 5, in any circumstance where it appears: 11 (a) That it would be inconsistent with a provision of the Articles of Incorporation, these ByLaws, a resolution of the shareholders or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement. Section 9. Upon determination by the Board of Directors, the Corporation may purchase and maintain insurance on behalf of any agent of the corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not the Corporation would have the power to indemnify the agent against such liability under the provisions of this Article. ARTICLE XII Annual Reports The annual report to shareholders prescribed in Section 1501 of the California General Corporation Law is waived. ARTICLE XIII Amendments to Bylaws Section 1. Shareholder Vote. New bylaws may be adopted or these bylaws may be amended or repealed by the vote of shareholders exercising a majority of the voting power represented by the outstanding shares, or by the written consent of shareholders exercising such voting powers. Section 2. Board of Directors Vote. Subject to the right of shareholders as provided in Section 1 of this Article, XIII, bylaws may be adopted, amended or repealed by a 12 majority of the board of directors, except a bylaw or amendment changing the authorized number of directors, a bylaw or amendment changing the power of the board of directors to fill a vacancy or vacancies occurring on the board of directors by reason of the removal of a director or directors, and any other bylaw or amendment which by law or by the articles of incorporation or by these bylaws may be adopted only by the shareholders. 13 EX-99.T3B72 150 exhibit_t3b-72.txt Exhibit T3A-72 -------------- State of California SECRETARY OF STATE I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 2 page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this day of Feb 26 2004 /s/ Kevin Shelley ----------------- Secretary of State [SEAL] ARTICLES OF INCORPORATION OF MT. LASSEN POWER I The name of this Corporation is Mt. Lassen Power II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the State of California of this corporation's initial agent for service of process is: Donald C. Liddell, 6055 East Washington Boulevard, Commerce, California 90040. IV This corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is 10,000. DATED: January 2, 1992 /s/ Pam Martin -------------- PAM MARTIN, INCORPORATOR I hereby declare that I am the person who executed the foregoing Articles of Incorporation, which execution is my act and deed. /s/ Pam Martin -------------- PAM MARTIN EX-99.T3B73 151 exhibit_t3b-73.txt Exhibit T3B-73 BYLAWS of PACIFIC GEOTHERMAL COMPANY ARTICLE I Principal Executive Office The principal executive office of the corporation is located at Suite 608, 6055 East Washington Blvd., Commerce, California 90040. ARTICLE II Meetings of Shareholders Section 1. Annual Meetings. The regular annual meeting of shareholders of the corporation shall be held on the 4th Tuesday of March of each year, at the hour of 9:30 a.m., provided that if the day is a legal holiday, then at the same time on the next day which is not a legal holiday. At the regular annual meeting of shareholders, directors shall be elected and any other business may be transacted which is within the powers of shareholders. Section 2. Special Meetings. Special meetings of shareholders may be called by the board of directors, or by the chairman of the board, if there be such an officer,' or by the 1 Exhibit T3B-73 president or by the holders of shares entitled to cast not less than ten percent (10%) of the votes at such meeting. Section 3. Place of Meetings. Each annual or special meeting of shareholders shall be held at such location as may be determined by the board of directors, or if no determination is made at such place as may be determined by the chief executive officer or by any other officer authorized by the board of directors or by the chief executive officer to make such determination, and if no location is so determined at the principal executive office of the corporation. Section 4. Notice of Meetings. Notice of each annual or special meeting of shareholders shall be given as required by law and, subject to the requirements of applicable law, shall contain such information, and shall be given to such persons at such time and in such manner as the board of directors shall determine or, if no determination is made, as the chief executive officer or any other officer so authorized by the board of directors or by the chief executive officer shall determine. Section 5. Waiver of Notice. The transactions of any meeting of shareholders, however called and noticed, shall be as valid as though in a meeting duly held after regular call 2 Exhibit T3B-73 and notice if a quorum be present and, before or after the meeting each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. Section 6. Conduct of Meetings. Subject to the requirements of applicable law, all annual and special meetings of shareholders shall be conducted in accordance with such rules and procedures as the board of directors may determine and, as to matters not governed by such rules and procedures, as, the chairman of such meeting shall determine. The chairman of any annual or special meeting of shareholders shall be designated by the board of directors and, in the absence of any such designation, shall be the chief executive officer of the corporation or other person designated by the chief executive officer. Section 7. Action Without Meeting. Except as may be prohibited by the California General Corporation Law or by the Articles of Incorporation or by these bylaws, any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice if a consent in writing, setting forth the action so 3 Exhibit T3B-73 taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If any such action is taken without a meeting, notice shall be given as required by law. ARTICLE III Board of Directors The authorized number of directors of the corporation shall not be less than three (3) nor more than five (5) until changed by a duly adopted bylaw amending this Section 1. Section 1. The number of directors shall be fixed at four (4) until changed, within the limits specified above, by a duly adopted bylaw amending this Section 1 or by the Board of Directors. A majority of the fixed number of directors shall constitute a quorum. ARTICLE IV Meetings of Directors Section 1. Regular Meetings. Regular quarterly meetings of the board of directors shall be held on such dates as shall be fixed by the board of directors. 4 Exhibit T3B-73 Immediately following each annual meeting of shareholders, there shall be a regular meeting of the board of directors of the corporation for the purposes of organization, election of officers and the transaction of the other business. Notice of regular meetings of the board of directors is not required. Section 2. Special Meetings. Special meetings of the board of directors for any purpose may be called at' any time by the chairman of the board, if there be such an officer, or by the president or by any vice president or by any two directors. Notice of the time and place of special meetings shall be given personally to each director, or communicated by telephone, or sent to each director by mail or other form of written communication. In case of notice by mail, telegraph or other form of written communication (1) it shall be deposited in the United States mail or Pacific Enterprises company mail or delivered to the telegraph company in the city in which the principal executive office of the corporation is located at least twenty-four (24) hours prior to the time of the meeting or (ii) delivered to the director's regular business office during normal business hours at least four (4) hours prior to the time 5 Exhibit T3B-73 of the meeting. In case notice is given personally or by telephone, it shall be given at least four (4) hours prior to the time of the meeting. Such mailing, telegraphing, delivering or giving of personal notice shall be legal notice to the directors. Section 3. Place of Meetings. Each regular or special meeting of the board of directors shall be held at the location determined as follows: The board of directors may designate any place, within or without the state of California, for the holding of any meeting; if no such designation is made, at such location as is designated by the person or persons calling the meeting; and if neither of such designations is made, at the principal executive office of the corporation. Section 4. Conduct of Meetings. Subject to the requirements of applicable law, all regular and special meetings of the board of directors shall be conducted in accordance with such rules and procedures as the board of directors may approve and, as to matter's not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any regular or special meeting shall be the chief executive officer or any other person that the board of directors may designate. 6 Exhibit T3B-73 Section 5. Conference Telephones. Members of the board of directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. Participation in a meeting pursuant to this Section 5 constitutes presence in person at such meeting. Section 6. Action Without Meeting. Any action required or permitted to be taken by the board of directors may be taken without a meeting if all members of the board of directors shall individually or collectively consent in writing to such action. Such written consent shall be filed with the minutes of the proceedings of the board of directors. Such action by written consent shall have the same force and effect as a unanimous vote of directors. Committees of the board of directors may not take action by written consent without a meeting. ARTICLE V Officers Section 1. Officers. The officers of the corporation shall be a president, a vice president, a secretary and a treasurer. The corporation may have, at the discretion of the board of directors, a chairman of the board, additional vice presidents, assistant secretaries, assistant treasurers, and 7 Exhibit T3B-73 such other officers as may be necessary or advisable for the conduct of the business. One person may hold two or more offices. Section 2. Election. The officers shall be elected by the board of directors and shall hold office at the pleasure of the board of directors. In the absence of further action by the board of directors, all officers shall hold office until the election, qualification and acceptance of office by their respective successors. ARTICLE VI Chairman of the Board The Chairman of the Board, if there be such an officer, shall exercise and perform such powers and duties as may be assigned to him by the board of directors. ARTICLE VII President Subject to supervisory powers as may be given by the board of directors to the chairman of the board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall have all of the powers and shall perform all of the duties which are inherent in the office of the president. He shall have general charge and supervision 8 Exhibit T3B-73 of the corporation's business and all of its officers, agents and employees. He shall fix the compensation of the remaining officers of the corporation, other than the chairman, if there be one, and shall have the additional powers and perform further duties as may be prescribed by the board of directors. ARTICLE VIII Vice Presidents In the president's absence, disability or refusal to act, the vice presidents in order of their rank shall perform all of the duties of the president and when so acting shall have all the president's powers and be subject to all the restrictions upon the president. The vice presidents shall have other powers and perform additional duties as may be prescribed by the board of directors or by the chief executive officer. ARTICLE IX Secretary Section 1. Duties. The secretary shall, at the principal executive office, a book of minutes of all meetings of directors and of shareholders, with the time and place of holding, whether regular or special, and if special how authorized and the notice given, the names of those present at meetings of directors, the number of shares represented in person or by written proxy at meetings of shareholders and the 9 Exhibit T3B-73 proceedings. The secretary shall at the principal executive office a share register showing the names of the shareholders and their addresses, the number of shares and classes of shares held by each, the number and date of certificate issued for the shares and the number and date of cancellation of every certificate surrendered. The secretary shall give notice of all the meetings of the shareholders and of the board of directors required by the bylaws or by law, and he shall the seal of the corporation in safe custody and shall have other powers and perform additional duties as may be prescribed by the board of directors, or by the chief executive officer. Section 2. Agent for Service of Process. Unless the board of directors shall designate another person to be the agent for service of process in California, the secretary shall be the agent for service of process. Section 3. Assistant Secretaries. It shall be the duty of the assistant secretaries to assist the~ secretary in the performance of his duties. In the absence or disability of the secretary, his duties may be performed by an assistant secretary. 10 Exhibit T3B-73 ARTICLE X Treasurer and Chief Financial Officer Section 1. Chief Financial Officer. Unless the board of directors shall designate another officer to be the chief financial officer, the treasurer shall be the chief financial officer. Section 2. Duties. The treasurer shall have custody and account for all funds of the corporation which may be deposited with him or in banks or other places of deposit. He shall disburse funds which have been duly approved for disbursement He shall sign notes, bonds or other evidences of indebtedness for the corporation as the board of directors may authorize. He shall perform other duties which may be assigned by the board of directors or by the chief executive officer. Section 3. Assistant Treasurers. It shall be the duty of the assistant treasurers to help the treasurer in the performance of his duties. In the absence or disability of the treasurer, his duties may be performed by an assistant treasurer. 11 Exhibit T3B-73 ARTICLE XI Indemnification of Agents of the Corporation; Purchase of Liability Insurance Section 1. For the purposes of this Article, "agent" means any person who is or was a director, officer, employee or other agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the Corporation or of another enterprise at the request of such predecessor corporation; "proceeding" means any threatened pending or completed action or proceeding, whether civil, criminal, administrative, or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 4 or paragraph (c) of Section 5 of this Article. Section 2. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed proceeding (other than an action by or in the right of the Corporation to procure a judgment in its favor) by reason of the' fact that such person 12 Exhibit T3B-73 is or was an agent of the Corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the Corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the Corporation or that the person had reasonable cause to believe that the person's conduct was unlawful. Section 3. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was an agent of the Corporation, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith, in a manner such person believed to be in the best interests of the Corporation 13 Exhibit T3B-73 and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. No indemnification shall be made under this Section 3: (a) In respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation in the performance of such person's duty to the Corporation, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, such person is, fairly and reasonably entitled to indemnity for the expenses which such court shall determine; (b) Of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without' court approval or (c) Of expenses incurred in defending a threatened or pending action `which is settled or otherwise disposed of without court approval. Section 4. To the extent that an agent of the Corporation has been successful on the merits in defense of any proceeding referred to in Section 2 or 3 or in defense of any claim, issue or matter therein, the agent shall be indemnified 14 Exhibit T3B-73 against expenses actually and reasonably incurred by the agent in connection therewith. Section 5. Except as provided in Section 4, any indemnification under this Article shall be made by the Corporation only if authorized in the specific case, upon a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in Section 2 or 3, by: (a) A majority vote of a quorum consisting of directors who are not parties to such proceeding; (b) Approval or ratification by the affirmative vote of a majority of the shares of the Corporation entitled to vote represented at a duly held meeting at which a quorum is present or by the written consent of holders of a majority of the outstanding shares entitled to vote, and by the affirmative vote or written consent of such greater proportion of the shares of any class or series as may be provided in the Articles of Incorporation for such action. For purposes of determining the required quorum of any meeting of shareholders called to approve or ratify indemnification of an agent and the vote or written consent required therefor, the shares owned by the person to be 15 Exhibit T3B-73 indemnified shall not be considered outstanding and shall not be entitled to vote thereon; or (c) The court in which such proceeding is or was pending, upon application made by the Corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not such application by the agent, attorney or other person is opposed by the Corporation. Section 6. Expenses incurred in defending any proceeding may be advanced by the Corporation prior to the final disposition of such proceeding upon receipt of an undertaking by or on `behalf of the agent to repay such amount unless it shall be determined ultimately that the agent is entitled to be indemnified as authorized in this Article. Section 7. This Article shall create a right of indemnification for each person referred to in this Article, whether or not the proceeding to which the indemnification relates arose `in whole or in part prior to adoption of this Article, and in the event of the death of such agent, whether' before or after initiation of such proceeding, such right shall extend to such person's legal representatives. This Article does not apply to any proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in such 16 Exhibit T3B-73 person's capacity as such, even though such person may also be an agent of the Corporation as defined in Section 1. Nothing contained in this Article shall limit any right to indemnification to which such a trustee, investment manager or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law other than this Article. In addition to the maximum extent permitted by applicable law, the right of indemnification hereby given shall not be exclusive of or otherwise affect any other rights such agent may have to indemnification, whether by law or under any contract, insurance policy or otherwise. Section 8. No indemnification or advance shall be made under this Article, except as provided in Section 4 or paragraph (c) of Section 5, in any circumstance where it appears: (a) That it would be inconsistent with a provision of the Articles of Incorporation, these ByLaws, a resolution of the shareholders or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or 17 Exhibit T3B-73 (b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement. Section 9. Upon determination by the Board of Directors, the Corporation may purchase and maintain insurance on behalf of any agent of the Corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not the Corporation would have the' power to indemnify the agent against such liability under the provisions of this Article. ARTICLE XII Annual Reports The annual report to shareholders prescribed in Section 1501 of the California General Corporation Law is waived. ARTICLE XIII Amendments to Bylaws Section 1. Shareholder Vote. New bylaws may be adopted or these bylaws may be amended or repealed by the vote of shareholders exercising a majority of the voting power represented by the outstanding shares, or by the written consent of shareholders exercising such voting powers. 18 Exhibit T3B-73 Section 2. Board of Directors Vote. Subject to the right of shareholders as provided in Section 1 of this Article XIII, bylaws may be adopted, amended or repealed by a majority of the board of directors, except a bylaw or amendment changing the authorized number of directors, a bylaw or amendment changing the power of the board of directors to fill a vacancy or vacancies occurring on the board `of directors by reason of the removal of a director or directors, and any other bylaw or amendment which by law or by the articles of incorporation or by these bylaws may be adopted only by the shareholders. 19 EX-99.T3B74 152 exhibit_t3b-74.txt Exhibit T3B-74 BYLAWS of PACIFIC OROVILLE POWER, INC. ARTICLE I Principal Executive Office The principal executive office of the corporation is located at Suite 608, 6055 East Washington Blvd., Commerce, California 90040. ARTICLE II Meetings of Shareholders Section 1. Annual Meetings. The regular annual meeting of shareholders of the corporation shall be held on the 4th Tuesday of March of each year, at the hour of 9:30 a.m., provided that if the day is a legal holiday, then at the same time on the next day which is not a legal holiday. At the regular annual meeting of shareholders, directors shall be elected and any other business may be transacted which is within the powers of shareholders. Section 2. Special Meetings. Special meetings of shareholders may be called by the board of directors, or by the chairman of the board, if there be such an officer, or by the president or by the holders of shares entitled to cast not less than ten percent (10%) of the votes at such meeting. Section 3. Place of Meetings. Each annual or special meeting of shareholders shall be held at such location as may be determined by the board of directors, or if no determination is made at such place as may be determined by the chief executive officer or by any other officer authorized by the board of directors or by the chief executive officer to make such determination, and if no location is so determined at the principal executive office of the corporation. Section 4. Notice of Meetings. Notice of each annual or special meeting of shareholders shall be given as required by law and, subject to the requirements of applicable law, shall contain such information, and shall be given to such persons at such time and in such manner as the board of directors shall determine or, if no determination is made, as the chief executive officer or any other officer so authorized by the board of directors or by the chief executive officer shall determine. Section 5. Waiver of Notice. The transactions of any meeting of shareholders, however called and noticed, shall be as valid as though in a meeting duly held after regular call and notice if a quorum be present and before or after the meeting each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting or an approval of the minutes thereof. Section 6. Conduct of Meetings. Subject to the requirements of applicable law, all annual and special meetings of shareholders shall be conducted in accordance with such rules and procedures as the board of directors may determine and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any annual or special meeting of shareholders shall be designated by the board of directors and, in the absence of any such designation, shall be the chief executive officer of the corporation or other person designated by the chief executive officer. Section 7. Action Without Meeting. Except as may be prohibited by the California General Corporation Law or by the Articles of Incorporation or by these bylaws, any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If any such action is taken without a meeting, notice shall be given as required by law. ARTICLE III Board of Directors The authorized number of directors of the corporation shall not be less than three (3) nor more than five (5) until changed by a duly adopted bylaw amending this Section 1. Section 1. The number of directors shall be fixed at four (4) until changed, within the limits specified above, by a duly adopted bylaw amending this Section 1 or by the Board of Directors. A majority of the fixed number of directors shall constitute a quorum. ARTICLE IV Meetings of Directors Section 1. Regular Meetings. Regular quarterly meetings of the board of directors shall be held on such dates as shall be fixed by the board of directors. Immediately following each annual meeting of shareholders, there shall be a regular meeting of the board of directors of the corporation for the purposes of organization, election of officers and the transaction of the other business. Notice of regular meetings of the board of directors is not required. Section 2. Special Meetings. Special meetings of the board of directors for any purpose may be called at any time by the chairman of the board, if there be such an officer, or by the president or by any vice president or by any two directors. Notice of the time and place of special meetings shall be given personally to, each director, or communicated by telephone, or sent to each director by mail or other form of written communication. In case of notice by mail, telegraph or other form of written communication (i) it shall be deposited in the United States mail or Pacific Enterprises company mail or delivered to the telegraph company in the city in which the principal executive office of the corporation is located at least twenty-four (24) hours prior to the time of the meeting or (ii) delivered to the director's regular business office during normal business hours at least four (4) hours prior to the time of the meeting. In case notice is given personally or by telephone, it shall be given at least four (4) hours prior to the time of the meeting. Such mailing, telegraphing, delivering or giving of personal notice shall be legal notice to the directors. Section 3. Place of Meetings. Each regular or special meeting of the board of directors shall be held at the location determined as follows: The board of directors may designate any place, within or without the state of California, for the holding of any meeting; if no such designation is made, at such location as is designated by the person or persons calling the meeting; and if neither of such designations is made, at the principal executive office of the corporation. Section 4. Conduct of Meetings. Subject to the requirements of applicable law, all regular and special meetings of the board of directors shall be conducted in accordance with such rules and procedures as the board of directors may approve and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any regular or special meeting shall be the chief executive officer or any other person that the board of directors may designate. Section 5. Conference Telephones. Members of the board of directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. Participation in a meeting pursuant to this Section 5 constitutes presence in person at such meeting. Section 6. Action Without Meeting. Any action required or permitted to be taken by the board of directors may be taken without a meeting if all members of the board of directors shall individually or collectively consent in writing to such action. Such written consent shall be filed with the minutes of the proceedings of the board of directors. Such action by written consent shall have the same force and effect as a unanimous vote of directors. Committees of the board of directors may not take action by written consent without a meeting. ARTICLE V Officers Section 1. Officers. The officers of the corporation shall be a president, a vice president, a secretary and a treasurer. The corporation may have, at the discretion of the board of directors, a chairman of the board, additional vice presidents, assistant secretaries, assistant treasurers, and such other officers as may be necessary or advisable for the conduct of the business. One person may hold two or more offices. Section 2. Election. The officers shall be elected by the board of directors and shall hold office at the pleasure of the board of directors. In the absence of further action by the board of directors, all officers shall hold office until the election, qualification and acceptance of office by their respective successors. ARTICLE VI Chairman of the Board The Chairman of the Board, if there be such an officer, shall exercise and perform such powers and duties as may be assigned to him by the board of directors. ARTICLE VII President Subject to supervisory powers as may be given by the board of directors to the chairman of the board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall have all of the powers and shall perform all of the duties which are inherent in the office of the president. He shall have general charge and supervision of the corporation's business and all of its officers, agents and employees. He shall fix the compensation of the remaining officers of the corporation, other than the chairman, if there be one, and shall have the additional powers and perform further duties as may be prescribed by the board of directors. ARTICLE VIII Vice Presidents In the president's absence, disability or refusal to act, the vice presidents in order of their rank shall perform all of the duties of the president and when so acting shall have all the president's powers and be subject to all the restrictions upon the president. The vice presidents shall have other powers and perform additional duties as may be prescribed by the board of directors or by the chief executive officer ARTICLE IX Secretary Section 1. Duties. The secretary shall, at the principal executive office, a book of minutes of all meetings of directors and of shareholders, with the time and place of holding, whether regular or special, and if special how authorized and the notice given, the names of those present at meetings of directors, the number of shares represented in person or by written proxy at meetings of shareholders and the proceedings. The secretary shall at the principal executive office a share register showing the names of the shareholders and their addresses, the number of shares and classes of shares held by each, the number and date of certificate issued for the shares and the number and date of cancellation of every certificate surrendered. The secretary shall give notice of all the meetings of the shareholders and of the board of directors required by the bylaws or by law, and he shall the seal of the corporation in safe custody and shall have other powers and perform additional duties as may be prescribed by the board of directors, or by the chief executive officer. Section 2. Agent for Service of Process. Unless the board of directors shall designate another person to be the agent for service of process in California, the secretary shall be the agent for service of process. Section 3. Assistant Secretaries. It shall be the duty of the assistant secretaries to assist the secretary in the performance of his duties. In the absence or disability of the secretary, his duties may be performed by an assistant secretary. ARTICLE X Treasurer and Chief Financial Officer Section 1. Chief Financial Officer. Unless the board of directors shall designate another officer to be the chief financial officer, the treasurer shall be the chief financial officer. Section 2. Duties. The treasurer shall have custody and account for all funds of the corporation which may be deposited with him or in banks or other places of deposit. He shall disburse funds which have been duly approved for disbursement. He shall sign notes, bonds or other evidences of indebtedness for the corporation as the board of directors may authorize. He shall perform other duties which may be assigned by the board of directors or by the chief executive officer. Section 3. Assistant Treasurers. It shall be the duty of the assistant treasurers to help the treasurer in the performance of his duties. In the absence or disability of the treasurer, his duties may be performed by an assistant treasurer. ARTICLE XI Indemnification of Agents of the Corporation; Purchase of Liability Insurance Section 1. For the purposes of this Article, "agent" means any person who is or was a director, officer, employee or other agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor-corporation of the Corporation or of another enterprise at the request of such predecessor corporation; "proceeding" means any threatened pending or completed action or proceeding, whether civil, criminal, administrative, or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 4 or paragraph (c) of Section 5 of this Article. Section 2. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed proceeding (other than an action by or in the right of the Corporation to procure a judgment in its favor) by reason of the fact that such person is or was an agent of the Corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the Corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the Corporation or that the person had reasonable cause to believe that the person's conduct was unlawful. Section 3. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was an agent of the Corporation, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith, in a manner such person believed to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. No indemnification shall be made under this Section 3: (a) In respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation in the performance of such person's duty to the Corporation, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for the expenses which such court shall determine; (b) Of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval or (c) Of expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval. Section 4. To the extent that an agent of the Corporation has been successful on the merits in defense of any proceeding referred to in Section 2 or 3 or in defense of any claim, issue or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith. Section 5. Except as provided in Section 4, any indemnification under this Article shall be made by the Corporation only if authorized in the specific case, upon a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in Section 2 or 3, by: (a) A majority vote of a quorum consisting of directors who are not parties to such proceeding; (b) Approval or ratification by the affirmative vote of a majority of the shares of the Corporation entitled to vote represented at a duly held meeting at which a quorum is present or by the written consent of holders of a majority of the outstanding shares entitled to vote, and by the affirmative vote or written consent of such greater proportion of the shares of any class or series as may be provided in the Articles of Incorporation for such action. For purposes of determining the required quorum of any meeting of shareholders called to approve or ratify indemnification of an agent and the vote or written consent required therefore, the shares owned by the person to be indemnified shall not be considered outstanding and shall not be entitled to vote thereon; or (c) The court in which such proceeding is or was pending, upon application made by the Corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not such application by the agent, attorney or other person is opposed by the Corporation. Section 6. Expenses incurred in defending any proceeding may be advanced by the Corporation prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount unless it shall be determined ultimately that the agent is entitled to be indemnified as authorized in this Article. Section 7. This Article shall create a right of indemnification for each person referred to in this Article, whether or not the proceeding to which the indemnification relates arose in whole or in part prior to adoption of this Article, and in the event of the death of such agent, whether before or after initiation of such proceeding, such right shall extend to such person's legal representatives. This Article does not apply to any proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in such person's capacity as such, even though such person may also be an agent of the Corporation as defined in Section 1. Nothing contained in this Article shall limit any right to indemnification to which such a trustee, investment manager or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law other than this Article. In addition to the maximum extent permitted by applicable law, the right of indemnification hereby given shall not be exclusive of or otherwise affect any other rights such agent may have to indemnification, whether by law or under any contract, insurance policy or otherwise. Section 8. No indemnification or advance shall be made under this Article, except as provided in Section 4 or paragraph (c) of Section 5, in any circumstance where it appears: (a) That it would be inconsistent with a provision of the Articles of Incorporation, these By-Laws, a resolution of the shareholders or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement. Section 9. Upon determination by the Board of Directors, the Corporation may purchase and maintain insurance on behalf of any agent of the Corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not the Corporation would have the power to indemnify the agent against such liability under the provisions of this Article. ARTICLE XII Annual Reports The annual report to shareholders prescribed in Section 1501 of the California General Corporation Law is waived. ARTICLE XIII Amendments to Bylaws Section 1. Shareholder Vote. New bylaws may be adopted or these bylaws may be amended or repealed by the vote of shareholders' exercising a majority of the voting power represented by the outstanding shares, or by the written consent of shareholders exercising such voting powers. Section 2. Board of Directors Vote. Subject to the right of shareholders as provided in Section 1 of this Article XIII, bylaws may be adopted, amended or repealed by a majority of the board of directors, except a bylaw or amendment changing the authorized number of directors, a bylaw or amendment changing the power of the board of directors to fill a vacancy or vacancies occurring on the board of directors by reason of the removal of a director or directors, and any other bylaw or amendment which by law or by the articles of incorporation or by these bylaws may be adopted only by the shareholders. EX-99.T3B75 153 exhibit_t3b-75.txt Exhibit T3B-75 BYLAWS of PACIFIC WOOD FUELS COMPANY ARTICLE I Principal Executive Office The principal executive office of the corporation is located at Suite 608, 6055 East Washington Blvd., Commerce, California 90040. ARTICLE II Meetings of Shareholders Section 1. Annual Meetings. The regular annual meeting of shareholders of the corporation shall be held on the 4th Tuesday of March of each year, at the hour of 9:30 a.m., provided that if the day is a legal holiday, then at the same time on the next day which is not a legal holiday. At the regular annual meeting of shareholders, directors shall be elected and any other business may be transacted which is within the powers of shareholders. Section 2. Special Meetings. Special meetings of shareholders may be called by the board of directors, or by the chairman of the board, if there be such an officer, or by the president or by the holders of shares entitled to cast not less than ten percent (10%) of the votes at such meeting. Section 3. Place of Meetings. Each annual or special meeting of shareholders shall be held at such location as may be determined by the board of directors, or if no determination is made at such place as may be determined by the chief executive officer or by any other officer authorized by the board of directors or by the chief executive officer to make such determination, and if no location is so determined at the principal executive office of the corporation. 1 Exhibit T3B-75 Section 4. Notice of Meetings. Notice of each annual or special meeting of shareholders shall be given as required by law and, subject to the requirements of applicable law, shall contain such information, and shall be given to such persons at such time and in such manner as the board of directors shall determine or, if no determination is made, as the chief executive officer or any other officer so authorized by the board of directors or by the chief executive officer shall determine. Section 5. Waiver of Notice. The transactions of any meeting of shareholders, however called and noticed, shall be as valid as though in a meeting duly held after regular call and notice if a quorum be present and before or after the meeting each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. Section 6. Conduct of Meetings. Subject to the requirements of applicable law, all annual and special meetings of shareholders shall be conducted in accordance with such rules and procedures as the board of directors may determine and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any annual or special meeting of shareholders shall be designated by the board of directors and, in the absence of any such designation, shall be the chief executive officer of the corporation or other person designated by the chief executive officer. Section 7. Action Without Meeting. Except as may be prohibited by the California General Corporation Law or by the Articles of Incorporation or by these bylaws, any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum 2 Exhibit T3B-75 number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If any such action is taken without a meeting, notice shall be given as required by law. ARTICLE III Board of Directors The authorized number of directors of the corporation shall not be less than three (3) nor more than five (5) until changed by a duly adopted bylaw amending this Section 1. Section 1. The number of directors shall be fixed at three (3) until changed, within the limits specified above, by a duly adopted bylaw amending this Section 1 or by the Board of Directors. A majority of the fixed number of directors shall constitute a quorum. ARTICLE IV Meetings of Directors Section 1. Regular Meetings. Regular quarterly meetings of the board of directors shall be held on such dates as shall be fixed by the board of directors. Immediately following each annual meeting of shareholders, there shall be a regular meeting of the board of directors of the corporation for the purposes of organization, election of officers and the transaction of the other business. Notice of regular meetings of the board of directors is not required. Section 2. Special Meetings. Special meetings of the board of directors for any purpose may be called at any time by the chairman of the board, if there be such an officer, or by the president or by any vice president or by any two directors. Notice of the time and place of special meetings shall be given personally to each director, or communicated by telephone, or sent to each director by mail or other form of written communication. In case of notice by mail, telegraph or other form of written communication (i) 3 Exhibit T3B-75 it shall be deposited in the United States mail or Pacific Enterprises company mail or delivered to the telegraph company in the city in which the principal executive office of the corporation is located at least twenty-four (24) hours prior to the time of the meeting or (ii) delivered to the director's regular business office during normal business hours at least four (4) hours prior to the time of the meeting. In case notice is given personally or by telephone, it shall be given at least four (4) hours prior to the time of the meeting. Such mailing, telegraphing, delivering or giving of personal notice shall be legal notice to the directors. Section 3. Place of Meetings. Each regular or special meeting of the board of directors shall be held at the location determined as follows: The board of directors may designate any place, within or without the state of California, for the holding of any meeting; if no such designation is made, at such location as is designated by the person or persons calling the meeting; and if neither of such designations is made, at the principal executive office of the corporation. Section 4. Conduct of Meetings. Subject to the requirements of applicable law, all regular and special meetings of the board of directors shall be conducted in accordance with such rules and procedures as the board of directors may approve and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any regular or special meeting shall be the chief executive officer or any other person that the board of directors may designate. Section 5. Conference Telephones. Members of the board of directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. 4 Exhibit T3B-75 Participation in a meeting pursuant to this Section 5 constitutes presence in person at such meeting. Section 6. Action Without Meeting. Any action required or permitted to be taken by the board of directors may be taken without a meeting if all members of the board of directors shall individually or collectively consent in writing to such action. Such written consent shall be filed with the minutes of the proceedings of the board of directors. Such action by written consent shall have the same force and effect as a unanimous vote of directors. Committees of the board of directors may not take action by written consent without a meeting. ARTICLE V Officers Section 1. Officers. The officers of the corporation shall be a president, a vice president, a secretary and a treasurer. The corporation may have, at the discretion of the board of directors, a chairman of the board, additional vice presidents, assistant secretaries, assistant treasurers, and such other officers as may be necessary or advisable for the conduct of the business. One person may hold two or more offices. Section 2. Election. The officers shall be elected by the board of directors and shall hold office at the pleasure of the board of directors. In the absence of further action by the board of directors, all officers shall hold office until the election, qualification and acceptance of office by their respective successors. ARTICLE VI Chairman of the Board The Chairman of the Board, if there be such an officer, shall exercise and perform such powers and duties as may be assigned to him by the board of directors. 5 Exhibit T3B-75 ARTICLE VII President Subject to supervisory powers as may be given by the board of directors to the chairman of the board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall have all of the powers and shall perform all of the duties which are inherent in the office of the president. He shall have general charge and supervision of the corporation's business and all of its officers, agents and employees. He shall fix the compensation of the remaining officers of the corporation, other than the chairman, if there be one, and shall have the additional powers and perform further duties as may be prescribed by the board of directors. ARTICLE VIII Vice Presidents In the president's absence, disability or refusal to act, the vice presidents in order of their rank shall perform all of the duties of the president and when so acting shall have all the president's powers and be subject to all the restrictions upon the president. The vice presidents shall have other powers and perform additional duties as may be prescribed by the board of directors or by the chief executive officer. ARTICLE IX Secretary Section 1. Duties. The secretary shall, at the principal executive office, a book of minutes of all meetings of directors and of shareholders, with the time and place of holding, whether regular or special, and if special how authorized and the notice given, the names of those present at meetings of directors, the number of shares represented in person or by written proxy at meetings of shareholders and the proceedings. The secretary shall at the 6 Exhibit T3B-75 principal executive office a share register showing the names of the shareholders and their addresses, the number of shares and classes of shares held by each, the number and date of certificate issued for the shares and the number and date of cancellation of every certificate surrendered. The secretary shall give notice of all the meetings of the shareholders and of the board of directors required by the bylaws or by law, and he shall the seal of the corporation in safe custody and shall have other powers and perform additional duties as may be prescribed by the board of directors, or by the chief executive officer. Section 2. Agent for Service of Process. Unless the board of directors shall designate another person to be the agent for service of process in California, the secretary shall be the agent for service of process. Section 3. Assistant Secretaries. It shall be the duty of the assistant secretaries to assist the secretary in the performance of his duties. In the absence or disability of the secretary, his duties may be performed by an assistant secretary. ARTICLE X Treasurer and Chief Financial Officer Section 1. Chief Financial Officer. Unless the board of directors shall designate another officer to be the chief financial officer, the treasurer shall be the chief financial officer. Section 2. Duties. The treasurer shall have custody and account for all funds of the corporation which may be deposited with him or in banks or other places of deposit. He shall disburse funds which have been duly approved for disbursement. He shall sign notes, bonds or other evidences of indebtedness for the corporation as the board of directors may authorize. He shall perform other duties which may be assigned by the board of directors or by the chief executive officer. 7 Exhibit T3B-75 Section 3. Assistant Treasurers. It shall be the duty of the assistant treasurers to help the treasurer in the performance of his duties. In the absence or disability of the treasurer, his duties may be performed by an assistant treasurer. ARTICLE XI Indemnification of Agents of the Corporation; Purchase of Liability Insurance Section 1. For the purposes of this Article, "agent" means any person who is or was a director, officer, employee or other agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the Corporation or of another enterprise at the request of such predecessor corporation; "proceeding" means any threatened pending or completed action or proceeding, whether civil, criminal, administrative, or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 4 or paragraph (c) of Section 5 of this Article. Section 2. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed proceeding (other than an action by or in the right of the Corporation to procure a judgment in its favor) by reason of the fact that such person is or was an agent of the Corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the Corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. The termination of any 8 Exhibit T3B-75 proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the Corporation or that the person had reasonable cause to believe that the person's conduct was unlawful. Section 3. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was an agent of the Corporation, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith, in a manner such person believed to be in the best interests of the Corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. No indemnification shall be made under this Section 3: (a) In respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation in the performance of such person's duty to the Corporation, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for the expenses which such court shall determine; (b) Of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval or (c) Of expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval. 9 Exhibit T3B-75 Section 4. To the extent that an agent of the Corporation has been successful on the merits in defense of any proceeding referred to in Section 2 or 3 or in defense of any claim, issue or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith. Section 5. Except as provided in Section 4, any indemnification under this Article shall be made by the Corporation only if authorized in the specific case, upon a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in Section 2 or 3, by: (a) A majority vote of a quorum consisting of directors who are not parties to such proceeding; (b) Approval or ratification by the affirmative vote of a majority of the shares of the Corporation entitled to vote represented at a duly held meeting at which a quorum is present or by the written consent of holders of a majority of the outstanding shares entitled to vote, and by the affirmative vote or written consent of such greater proportion of the shares of any class or series as may be provided in the Articles of Incorporation for such action. For purposes of determining the required quorum of any meeting of shareholders called to approve or ratify indemnification of an agent and the vote or written consent required therefor, the shares owned by the person to be indemnified shall not be considered outstanding and shall not be entitled to vote thereon; or (c) The court in which such proceeding is or was pending, upon application made by the Corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not such application by the agent, attorney or other person is opposed by the Corporation. 10 Exhibit T3B-75 Section 6. Expenses incurred in defending any proceeding may be advanced by the Corporation prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount unless it shall be determined ultimately that the agent is entitled to be indemnified as authorized in this Article. Section 7. This Article shall create a right of indemnification for each person referred to in this Article, whether or not the proceeding to which the indemnification relates arose in whole or in part prior to adoption of this Article, and in the event of the death of such agent, whether before or after initiation of such proceeding, such right shall extend to such person's legal representatives. This Article does not apply to any proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in such person's capacity as such, even though such person may also be an agent of the Corporation as defined in Section 1. Nothing contained in this Article shall limit any right to indemnification to which such a trustee, investment manager or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law other than this Article. In addition to the maximum extent permitted by applicable law, the right of indemnification hereby given shall not be exclusive of or otherwise affect any other rights such agent may have to indemnification, whether by law or under any contract, insurance policy or otherwise. Section 8. No indemnification or advance shall be made under this Article, except as provided in Section 4 or paragraph (c) of Section 5, in any circumstance where it appears: (a) That it would be inconsistent with a provision of the Articles of Incorporation, these ByLaws, a resolution of the shareholders or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the 11 Exhibit T3B-75 expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement. Section 9. Upon determination by the Board of Directors, the Corporation may purchase and maintain insurance on behalf of any agent of the Corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not the Corporation would have the power to indemnify the agent against such liability under the provisions of this Article. ARTICLE XII Annual Reports The annual report to shareholders prescribed in Section 1501 of the California General Corporation Law is waived. ARTICLE XIII Amendments to Bylaws Section 1. Shareholder Vote. New bylaws may be adopted or these bylaws may be amended or repealed by the vote of shareholders exercising a majority of the voting power represented by the outstanding shares, or by the written consent of shareholders exercising such voting powers. Section 2. Board of Directors Vote. Subject to the right of shareholders as provided in Section 1 of this Article XIII, bylaws may be adopted, amended or repealed by a majority of the board of directors, except a bylaw or amendment changing the authorized number of directors, a bylaw or amendment changing the power of the board of directors to fill a vacancy or vacancies occurring on the board of directors by reason of the removal of a director or directors, 12 Exhibit T3B-75 and any other bylaw or amendment which by law or by the articles of incorporation or by these bylaws may be adopted only by the shareholders. EX-99.T3B76 154 exhibit_t3b-76.txt Exhibit T3B-76 BYLAWS of PACIFIC WOOD SERVICES COMPANY ARTICLE I Principal Executive Office The principal executive office of the corporation shall be located at 6055 East Washington Blvd., Commerce, California 90040, or such other place as may be designated from time to time by the board of directors. ARTICLE II Meetings of Shareholders Section 1. Annual Meetings. Unless otherwise determined by the board of directors, the regular annual meeting of shareholders of the corporation shall be held on the 4th Tuesday of March of each year, at the hour of 9:30 a.m.; provided that if the day is a legal holiday, then at the same 1 Exhibit T3B-76 time on the next day which is not a legal holiday. At the regular annual meeting of shareholders, directors shall be elected and any other business may be transacted which is within the powers of shareholders. Section 2. Special Meetings. Special meetings of shareholders may be called by the board of directors, or by the chairman of the board, if there be such an officer, or by the president or by the holders of shares entitled to cast not less than ten percent (10%) of the votes at such meeting. Section 3. Place of Meetings. Each annual or special meeting of shareholders shall be held at such location as may be determined by the board of directors, or if no determination is made at such place as may be determined by the chief executive officer or by any other officer authorized by the board of directors or by the chief executive officer to make such determination, and if no location is so determined, at the principal executive office of the corporation. Section 4. Notice of Meetings. Notice of each annual or special meeting of shareholders shall be given as required by law and, subject to the requirements of applicable law, shall 2 Exhibit T3B-76 contain such information, and shall be given to such persons at such time and in such manner as the board of directors shall determine or, if no determination is made, as the chief executive officer or any other officer so authorized by the board of directors or by the chief executive officer shall determine. Section 5. Waiver of Notice. The transactions of any meeting of shareholders, however called and noticed, shall be as valid as though in a meeting duly held after regular call and notice if - a quorum be present and before or after the meeting each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. Section 6. Conduct of Meetings. Subject to the requirements of applicable law, all annual and special meetings of shareholders shall be conducted in accordance with such rules and procedures as the board of directors may determine and, as to matters not governed by such rules and procedures, as the - chairman of - such meeting shall determine. -The chairman of any annual or special meeting of shareholders shall be designated by the board of director and, in the absence of any such 3 Exhibit T3B-76 designation, shall be the chief executive officer of the corporation or other person designated by the chief executive officer. Section 7. Action Without Meeting. Except as may be prohibited by the California General Corporation Law or by the Articles of Incorporation or by these bylaws, any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice - if a consent in writing, setting forth the action so taken, shall be signed by the holders of -outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If any such action is taken without a meeting, notice shall be given as required by law. ARTICLE III Board of Directors Section 1. Number of Directors. The authorized number of directors of the corporation shall not be less than three (3) nor more than seven (7) until changed by a duly 4 Exhibit T3B-76 adopted bylaw amending this Section 1. The number of directors shall be fixed at three (3) until changed, within the limits specified above, by a duly adopted bylaw amending this Section 1 or by the board of directors. Section 2. Quorum. A majority of the fixed number of directors shall constitute a quorum. ARTICLE IV Meetings of Directors Section 1. Regular Meetings. Immediately following each annual meeting of shareholders, there shall be a regular meeting of the board of directors of the corporation for the purposes or organization, election of officers and the transaction of other business. Notice of regular meetings of the board of directors is not required. Section 2. Special Meetings. Special meetings of the board of directors for any purpose may be called at any time by the chairman of the board, if there be such an officer, or by the president or by any vice president or by any two directors. 5 Exhibit T3B-76 Notice of the time and place of special meetings shall be given personally to each director, or communicated by telephone, or sent to each director by mail or other form of written communication. In case of notice by mail, telegraph or other form of written communication (i) it shall be deposited in the United States mail or company mail or delivered to the telegraph company in the city in which the principal executive office of the corporation is located at least twenty-four (24) hours prior to the time of the meeting or (ii) delivered to the director's regular business office during normal business hours at least four (4) hours prior to the time of the meeting. In case notice is given personally or by telephone, it shall be given at least four (4) hours prior to the time of the meeting. Such mailing, telegraphing, delivering or giving of personal notice shall be legal notice to the directors. Section 3. Place of Meetings. Each regular or special meeting of the board of directors shall be held at the location determined as follows: The board - of directors may designate any place, within or without the state of California, for the holding of any meeting; if no such designation is made, at such location as is designated by the person or persons calling the meeting; and if neither of such designations - is made, at the principal executive office of the corporation. 6 Exhibit T3B-76 Section 4. Conduct of Meetings. Subject to the requirements of applicable law, all regular and special meetings of the board of directors shall be conducted in accordance with such rules and procedures as the board of directors may approve and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any regular or special meeting shall be the chief executive officer or any other person that the board of directors may designate. Section 5. Conference Telephones. Members of the board of - directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. Participation in - a meeting pursuant to this Section 5 constitutes presence in person at such meeting. Section 6. Action Without Meeting. Any action required or permitted to be taken by the board of directors may be taken without a meeting - if all members of the board of directors shall individually or collectively consent in writing to such action. Such written consent shall be filed with the minutes of the proceedings of the board of directors. Such action by written consent shall have the same force and effect 7 Exhibit T3B-76 as a unanimous vote of directors. ARTICLE V Officers Section 1. Officers. The officers of the corporation shall be a president, a vice president, a secretary and a treasurer. The corporation may have, at the discretion of the board of directors, a chairman of the board, additional vice presidents, assistant secretaries, assistant treasurers, and such other officers as may be necessary or advisable for the conduct of the business. One person may hold two or more offices. Section 2. Election. The officers shall be elected by the board of directors and shall hold office at the pleasure of the board of directors. In the absence of further action by the board of directors, all officers shall hold office until the election, qualification and acceptance of office by their respective successors. ARTICLE VI Chairman of the Board The chairman of the board, if there be such an 8 Exhibit T3B-76 officer, shall be a member of the board of directors and shall exercise and perform such powers and duties as may be assigned to such person by the board of directors. ARTICLE VII President Subject to supervisory powers as may be given by the board of directors to the chairman of the board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall have all of the powers and shall perform all of the duties which are inherent in the office of the president. The president shall have general charge and supervision of the corporation's business and all of its officers, - agents and employees. The president shall have the additional powers and perform such further duties as may be prescribed by the board of directors. ARTICLE VIII Vice Presidents In the president's absence, disability or refusal to act, the vice presidents in - order of their rank shall perform all of the duties of the president and when so acting shall have all the president's powers and be subject to all the 9 Exhibit T3B-76 restrictions upon the president. The vice presidents shall have other powers and perform such additional duties as may be prescribed by the board of directors or by the chief executive officer. ARTICLE IX Secretary Section 1. Duties. The secretary shall keep at the principal executive office, a book of minutes of all meetings of directors and of shareholders, with the time and place of holding, whether regular or special, and if special, how authorized and the notice given, the names of those present at meetings of directors, the number of shares represented in person or by written proxy at meetings of shareholders and the proceedings. The secretary shall keep at the principal executive office a share register showing the names of the shareholders and their addresses, the number of shares and classes of shares held by each, the number and date of certificate issued for - the shares and the number and date of cancellation of every - certificate surrendered. The secretary shall give notice of all the meetings of the shareholders and of the board of directors required by the bylaws or by law, and shall keep the seal of the corporation in safe custody and shall have the other powers and 10 Exhibit T3B-76 perform additional duties as may be prescribed by the board of directors, or by the chief executive officer. Section 2. Agent for Service of Process. Unless the board of directors shall designate another person to be the agent for service of process in California, the secretary shall be the agent for service of process. Section 3. Assistant Secretaries. It shall be the duty of the assistant secretaries to assist the secretary in the performance of the secretary's duties. In the absence or disability of the secretary, the secretary's duties may be performed by an assistant secretary. ARTICLE X Treasurer and Chief Financial Officer Section 1. Chief Financial Officer. Unless the board of directors shall designate another officer to be the chief financial officer, the treasurer shall be the chief financial officer. 11 Exhibit T3B-76 Section 2. Duties. The treasurer shall have custody and account for all funds of the corporation which may be deposited - with the treasurer or in banks or other- places of deposit. The treasurer shall disburse funds which have been duly approved for disbursement. The treasurer shall sign notes, bonds or other evidences of indebtedness for the corporation as the board of directors may authorize. The treasurer shall perform other duties which may be assigned by the board of directors or by the chief executive officer. Section 3. Assistant Treasurers. It shall be the duty of the assistant treasurers to help the treasurer in the performance of the treasurer's duties. In the treasurer's absence or disability, the treasurer's duties may be performed by an assistant treasurer. ARTICLE XI Indemnification of Agents of the Corporation; Purchase of Liability Insurance Section 1. For the purpose of this Article, "agent" means any person who is or was a director, officer, employee or other agent of the corporation, or is or was -serving at the request of the corporation as a director, officer, 12 Exhibit T3B-76 employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor - corporation; "proceeding" means any threatened - pending or completed action or proceeding, whether civil, criminal, administrative, or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 4 or paragraph (c) of Section 5 of this Article. Section 2. The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed proceeding (other than an action by or in the right of the corporation to procure a judgment in its favor) by reason of the fact that such person is or was an agent of the corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the corporation and, in the case of a criminal proceeding, had no 13 Exhibit T3B-76 reasonable cause to believe the conduct of such person was unlawful. The termination of any proceeding - by judgment, - order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the corporation or that the person had reasonable cause to believe that the person's conduct was unlawful. Section 3. The corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was an agent of the corporation, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith, in a manner such person believed to be in the best interests of the corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar -circumstances. No indemnification shall be made under this Section 3: (a) In respect of any claim, issue or matter as 14 Exhibit T3B-76 to which such person shall have been adjudged to be liable to the corporation in the performance of such person's duty to the corporation, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for the expenses which such court shall determine; (b) Of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval; or (C) Of expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval. Section 4. To the extent that an agent of the corporation has been successful on the merits in defense of any proceeding referred to in Section 2 or 3 or in defense of any claim, issue or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith. Section 5. Except as provided in Section 4, any indemnification under this Article shall be made by the 15 Exhibit T3B-76 corporation only if authorized in the specific case, upon a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in Section 2 or 3, by: (a) A majority vote of a quorum consisting of directors who are not parties to such proceeding; (b) Approval or ratification by the- affirmative vote of a majority of the shares of the corporation entitled to vote represented at a duly held meeting at which a quorum is present or by the written consent of holders of a majority of the outstanding shares entitled to vote, and by the affirmative vote or written consent of such greater proportion of the shares of any class or series as may be provided in the Articles of Incorporation for such action. For purposes of determining the required quorum of any meeting of shareholders called to approve or ratify indemnification of an agent and the vote or written consent required therefor, the shares owned by the person to be indemnified shall not be considered outstanding and shall not be entitled to vote thereon; or 16 Exhibit T3B-76 (c) The court in which such proceeding is or was pending, upon application made by the corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not such application by the agent, attorney or other person is opposed by the corporation. Section 6. Expenses incurred in defending any proceeding may be advanced by the corporation prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount unless it shall be determined ultimately that the agent is entitled to be indemnified as authorized in this Article. Section 7. This Article shall create a right of indemnification for each person referred to in this Article, whether or not the proceeding to which the indemnification relates arose in whole or in part prior to adoption of this Article, and in the event of the death of such agent, whether before or after initiation of such proceeding, such right shall extend to such person's a legal representatives. This Article does not apply to any proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in such person's capacity as such, even though such person may also be 17 Exhibit T3B-76 an agent of the corporation as defined in Section 1. Nothing contained in this Article shall limit any right to indemnification to -which such a trustee, investment manager or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law other than this Article. In addition to the maximum extent permitted by applicable law, the right of indemnification hereby given shall not be exclusive of or otherwise affect any other rights such agent may have to indemnification, whether by law or under any contract, insurance policy or otherwise. Section 8. No indemnification or advance shall be made under this Article, except as provided in Section 4 or paragraph (c) of Section 5, in any circumstance where it appears: (a) That it would be inconsistent with a provision of the Articles of Incorporation, these Bylaws, a resolution of the shareholders or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits 18 Exhibit T3B-76 indemnification; or (b) That it would be inconsistent with any condition expressly imposed by a court in approving a -settlement. Section 9. Upon determination by the board of directors, the corporation may purchase and maintain insurance on behalf of any agent of the corporation against any liability asserted against or - incurred by the agent in such capacity or arising out of the agent's status as such, whether or not the corporation would have the power to indemnify the agent against such liability under the provisions of this Article. ARTICLE XII Annual Reports The annual report to shareholders prescribed in Section 1501 of the California General Corporation Law is waived. ARTICLE XIII Amendments to Bylaws Section 1. Shareholder Vote. New bylaws may be adopted or these bylaws may be amended or repealed by vote of shareholders exercising a majority of the voting power 19 Exhibit T3B-76 represented by the outstanding shares, or by the written consent of shareholders exercising such voting powers. Section 2. Board of Directors Vote. Subject to the right of shareholders as provided in Section 1 of this Article XIII, bylaws may be adopted, amended or repealed by a majority of the board of directors, except a bylaw or amendment changing - the authorized number of directors, a bylaw or amendment changing the power of the board of directors to fill a vacancy or vacancies occurring on the board of directors by reason of the removal of a director or directors, and another bylaw or amendment which by law or by the articles of incorporation or by these bylaws may be adopted only by the shareholders. 20 EX-99.T3B77 155 exhibit_t3b-77.txt Exhibit T3B-77 THREE MOUNTAIN OPERATIONS, INC. * * * * B Y - L A W S * * * * ARTICLE I OFFICES Section 1. The registered office shall be in the City of Dover, County of Kent, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time 1 by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. 2 Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding shares of stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders 3 entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder or record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such 4 stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall not be less than three nor more than six. The first board shall consist of thee directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the 5 stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. 6 Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the 7 board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board, a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. 8 Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as 9 alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the 10 certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolutions adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the said to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. 11 REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether 12 before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice president, a secretary and a treasurer. The board of directors may also choose additional vice presidents, and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice presidents, a secretary and a treasurer. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected 13 or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. In the absence of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents 14 in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARY Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to 15 any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of 16 directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 17 ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertified stock, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by 18 the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed 19 or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of 20 record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on the books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be 21 paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. 22 FISCAL YEAR Section 5. The fiscal year of the corporation shall coincide with the calendar year unless otherwise fixed by resolution of the board of directors. SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The Corporation shall indemnify to the fullest extent permitted by law any person who is or was a party to or witness or participant in, or is threatened to be made a party to or witness or participant in, any threatened, pending or completed action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director, officer, employee or agent of the Corporation or serves or served at the request of the Corporation any other enterprise as a director, officer, employee or agent against expenses (including attorneys' 23 fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Any and all expenses (including attorneys' fees) incurred by any such person in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking by or on behalf of such person to repay such expenses if it shall ultimately be determined by a final judgment or other final adjudication that such person is not entitled to be indemnified by the Corporation as authorized by this by-law. The rights provided to any person by this by-law shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer, employee or agent as provided above. No amendment of this by-law shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this by-law, the term "Corporation" shall include any predecessor of the Corporation and any constituent Corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term "other enterprise" shall include any corporation, partnership, joint venture, trust or employee benefit plan; service "at the request of the Corporation" shall 24 include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by such director, officer or employee with respect to any employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to any employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice ;of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of 25 incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 26 EX-99.T3B78 156 exhibit_t3b-78.txt Exhibit T3B-78 -------------- OPERATING AGREEMENT OF THREE MOUNTAIN POWER, LLC A DELAWARE LIMITED LIABILITY COMPANY The undersigned member (the "Member") hereby, and with the filing of a certificate of formation of Three Mountain Power, LLC pursuant to and in accordance with the Limited Liability Company Act of the State of Delaware, as amended from time to time (the "Act"), declares the following to be the Operating Agreement of such limited liability company: 1. Name. The name of the limited liability company is Three Mountain Power, LLC (the "Company"). 2. Purpose and Powers. The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing. 3. Principal Office. The principal office of the Company shall be located at 40 Lane Road, Fairfield, New Jersey 07007, or at such other place as may be designated by written notice from the Board of Managers to the Member. The Company may have such additional place or places of business as the Board of Managers may from time to time deem advisable. 4. Member. The name and the business, residence or mailing address of the Member is as follows: Ogden Power Corporation 3211 Jermantown Road Suite 300 Fairfax, Virginia 22030 5. Capital Contribution. The Member's initial capital contribution to the Company shall be at the time and on the terms specified on Exhibit C. The value of the Member's initial capital contribution shall be as set forth on Exhibit C. The Member in its sole discretion shall be entitled to make additional capital contributions to the Company. 6. Management. The business and affairs of the Company shall be managed by the Board of Managers in accordance with the procedures and grant of authority set forth on Exhibit A hereto. Each manager on the Board of Managers (a "Manager") shall, subject to the terms of this Agreement, have the duties and authority of a "manager" as that term is defined in the Act. 7. Officers. The Board of Managers may designate one or more individuals, who may or may not be Managers, as officers of the Company, who shall have such titles and exercise and perform such powers and duties as set forth on Exhibit B hereto. 8. Standard of Care of Board of Managers and Officers. The members of the Board of Managers and the Officers shall perform their duties in good faith and with that degree of care that an ordinarily prudent person in a like position would use under similar circumstances. In performing their duties, the Managers and Officers shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by (i) one or more agents or employees of the Company, or (ii) counsel, public accountants or other persons as to matters that the Board of Managers believes to be within such person's professional or expert competence. A Manager or Officer who so performs the duties of a manager or officer in accordance with this section shall have no liability by reason of being or having been a Manager or Officer of the Company. 9. Allocation of Profits and Losses. The Company's profits and losses shall be allocated to the Member. 10. Distributions. The Company shall make distributions to the Member at the times and in the aggregate amounts determined by the Member. 11. Assignments. The Member may assign all or any part of its membership interest in the Company at any time, and, unless the Member otherwise provides, any transferee shall become a substituted member automatically; provided, however, that any subsequent assignment or transfer by such transferee shall be subject to the prior written approval of the Member. In the event of an assignment or transfer of a membership interest in the Company, this Operating Agreement shall be amended in accordance with Section 18 hereof to reflect the new member(s). 12. Additional Members. Additional Persons (as defined in the Act) may be admitted as members of the Company, without the sale, assignment, transfer or exchange by the Member of all or any part of its membership interest in the Company, upon the terms arid conditions as the Member may provide, from time to time. In such event, this Operating Agreement shall be amended in accordance with Section 18 hereof to reflect the new member(s), the membership interests of the Member and such additional member(s), and the capital contributions of such additional member(s). 13. Dissolution. The Company shall dissolve, and its affairs shall be wound up, upon the earliest to occur of (a) the written consent of the Member or (b) an event of dissolution of the Company under the Act. 14. Distributions upon Dissolution. Upon the occurrence of an event set forth in Section 11 hereof, the Member shall be entitled to receive, after paying or making reasonable provision for all of the Company's creditors to the extent required by the Act, the remaining funds of the Company. 15. Withdrawal. The Member may withdraw from the Company at any time. 16. Limited Liability. The Member shall not have any liability for the obligations of the Company except to the extent required by the Act. 17. Indemnification. To the fullest extent permitted by applicable law, the Member, any affiliate of the Member, any officers, directors, shareholders, members, partners or employees of any affiliate of the Member, and any officer, employee or expressly authorized agent of the Company or its affiliates (collectively "Covered Person"), shall be entitled to indemnification from the Company for any loss, damage, claim or liability incurred by such Covered Person by reason of any act or omission performed, or omitted to be performed, or alleged to be performed or omitted to be performed, by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Operating Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage, claim or liability incurred by such Covered Person by reason of his gross negligence, actual fraud or willful misconduct with respect to such acts or omissions. 18. Amendment. This Agreement may be amended only in a writing signed by the Member. 19. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware, excluding any conflicts of laws rule or principle that might refer the governance or construction of this Agreement to the law of another jurisdiction. IN WITNESS WHEREOF, the undersigned has caused this Operating Agreement of Three Mountain Power, LLC to be executed as of the 9th day of September, 1998. OGDEN POWER CORPORATION By: /s/ Jeffrey R. Horowitz ------------------------ Jeffrey R. Horowitz, Secretary Exhibit A BOARD OF MANAGERS 1. Powers of the Board of Managers. (a) Except as specifically reserved to the Member in this Agreement, the Board of Managers shall have complete discretion, power and authority in the management and control of the business of the Company, shall make all decisions affecting the business of the Company and shall manage and control the affairs of the Company to carry out the business and purposes of the Company. Without limiting the generality of the foregoing, the Board of Managers is hereby authorized: (i) to expend Company funds in furtherance of the purposes of the Company; (ii) to manage and keep in force such insurance as may be required to reasonably protect the Company and its assets; (iii) to borrow money for and on behalf of the Company and to incur and/or guarantee obligations for and on behalf of the Company, whether not in the ordinary course of the Company's business, on such terms and at such rates of interest as the Board of Managers may deem advisable and proper; (iv) to pledge the credit of the Company and grant security interests in Company assets for Company purposes; (v) to employ such agents, employees, independent contractors, attorneys and accountants as the Board of Managers deems reasonably necessary; (vi) to commence, defend, compromise or settle any claims, proceedings, actions or litigation for and on behalf of the Company; (vii) to execute, deliver and file any amendment, restatement or revocation of the Certificate of Formation as may be necessary or appropriate to reflect actions properly taken by the Board of Managers and/or the Member under this Agreement; (viii) to prepare and file, on behalf of the Company, any required local, state and federal tax returns or other tax reports or documents relating to the Company and, in its sole discretion, to make or revoke the elections referred to in Section 754 of the Code or any corresponding provision of state tax laws; (ix) to designate the "Tax Matters" member required by the Code; (x) to execute, deliver, file and/or record any and all instruments, documents or agreements of any kind which the Board of Managers may deem appropriate or as may be necessary or desirable to carry out the purposes of the Company; and (xi) to take such other actions as the Board of Managers may reasonably believe to be necessary or desirable to carry out the purposes of the Company. (b) Notwithstanding paragraph (a) of this Section 1, the Board of Managers shall not: (i) sell, exchange, lease, mortgage, pledge or otherwise transfer all or substantially all of the assets of the Company without the approval of the Member, (ii) merge or consolidate the Company with or into another limited liability company, partnership, corporation or other business entity without the approval of the Member, or (iii) admit Additional Persons as members of the Company without the approval of the Member. (c) The Board of Managers shall act only as a board, and no individual Manager shall have any authority to act on behalf of or bind the Company except as may be authorized by the Board of Managers. The actions taken by the Board of Managers, unless otherwise directed by the Board of Managers, shall be implemented by the officers of the Company. 2. Number. The number of Managers constituting the entire Board of Managers shall be such number as shall be fixed from time to tune by the Board of Managers, provided that no decrease in the number of Managers shall shorten the term of any incumbent Manager. The initial number of Managers shall be three (3). 3 Election of Managers. Except as set forth below, the Board of Managers shall be appointed by the Member. 4. Term. Each Manager shall serve until (a) his successor is appointed or (b) his earlier resignation, removal, death or inability to serve. 5 Meetings of the Board. An annual meeting of the Board of Managers shall be held in each year on the first business day of the first month of the fiscal year of the Member. Other regular meetings of the Board shall be held at such times as may from time to time be fixed by resolution of the Board. Special meetings of the Board may be held at any lime upon the call of the Member, the President or one-third of the entire Board of Managers. Meetings of the Board of Managers shall be held at such place, within or without the State of New Jersey, as from time to time may be fixed by resolution of the Board. If no place is so fixed, meetings of the Board shall be held at the principal office of the Company. 6. Notice of Meetings. Notice of regular meetings (except when notice of a regular meeting has been waived by the unanimous consent of the Board of Managers) and special meetings of the Board of Managers shall be mailed to each Manager, addressed to the address last given by each Manager to the Secretary or, if none has been given, to the Manager's residence or usual place of business, at least three days before the day on which the meeting is to be held, or shall be sent to the Manager by facsimile, cable, wireless, or similar means so addressed or shall be delivered personally or by telephone, at least seventy-two (72) hours before the time the meeting is to be held. Each notice shall state the time and place of the meeting but need not state the purposes thereof except as otherwise expressly provided by applicable law. Notices of any such meeting need not be given to any Manager who submits a signed waiver of notice, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice. 7. Quorum and Manner of Acting. At each meeting of the Board of Managers the presence of two-thirds of the entire Board shall constitute a quorum for the transaction of business, and, except as otherwise provided in this Agreement or required by the Act, the vote of a majority of the Managers present at the time of the vote, if a quorum is present at that time, shall be the act of the Board. 8. Action Without a Meetinng. Any action required or permitted to be taken by the Board or any committee thereof may be taken without a meeting if all members of the Board or the committee consent in writing to the adoption of a resolution authorizing the action. The resolution and the written consents thereto by the members of the Board or committee shall be filed with the minutes of the proceedings of the Board or committee. 9. Participation in Board Meetings by Conference Telephone: Proxies. Any one or more members of the Board of Managers or any committee thereof may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. At all meetings of the Board of Managers, a Manager may vote by proxy executed in writing by the Manager or by his duly authorized attorney-in-fact. In order to be effective, such proxy shall (i) be signed in the exact name of the Manager on record with the Company, and (ii) be presented at the meeting of the Board of Managers and delivered to the acting secretary of such meeting. No proxy shall be valid after three (3) months from the date of its execution, notwithstanding anything to the contrary provided in the proxy. 10. Executive and Other Committees of the Board of Managers. The Board of Managers, by resolution adopted by a majority of the entire Board, may designate from among its members an executive committee and other committees, each consisting of one or more Managers, and each of which committee, to the extent provided in the resolution, shall have all the authority of the Board, except that no such committee shall have authority as to the following matters: (a) The submission to the Member of any action that needs the Member's approval under this Agreement; (b) The filling of vacancies in the Board of Managers or in any committee; (c) The amendment or repeal of this Agreement; and (d) The amendment or repeal of any resolution of the Board which by its terms shall not be so amendable or repealable. The presence of all of the members of a committee shall constitute a quorum for the transaction of business or of any specified item of business, and the vote of a majority of the members of such committee present at the time of such vote, if a quorum is present at such time, shall be the act of the committee. The Board of Managers may designate one or more Managers as alternate members of any such committee, who may replace any absent member or members at any meeting of such committee. 11. Resignation and Removal. Any Manager may resign at any time by giving written notice to the President or to the Secretary. Such resignation shall take effect at the time specified therein or, if no time is specified, then on delivery and, unless otherwise specified therein, the acceptance of such resignation by the Board of Managers shall not be needed to make it effective. Any or all of the Managers may be removed, at any time, with or without cause, by the Member. Any vacancy created by the removal of a Manager or Managers may be filled by the Member and, if not so filled, then by the remaining Managers as provided in Section 12 below. 12. Vacancies. Newly created seats on the Board of Managers resulting from an increase in the number of Managers and vacancies occurring in the Board of Managers for any reason may be filled by vote of a majority of the Managers then in office, even if less than a quorum exists. A Manager elected to fill a newly created seat on the Board of Managers or a vacancy shall hold office until the next annual meeting of Members and until such Manager's successor has been elected and qualified. A Manager elected by the Board of Managers to fill a vacancy serves until the next annual meeting of the Board of Managers and until his successor is appointed by the Member. A Manager elected by the Member to fill a vacancy, whether to fill a vacancy resulting from removal of a Manager or the expiration of the term of a replacement Manager elected by the Board of Managers, serves for the balance of the term of such Manager. 13. Limitation on Liability of the Board of Managers. The Managers shall not be personally liable to the Company or the Member for damages for any breach of duty in their capacity as Managers of the Company, except for any matter in respect of which they shall be liable by reason that, in addition to any and all other requirements for such liability, there shall have been a judgment or other final adjudication adverse to such Manager that establishes that the Manager's acts or omissions were in bad faith or involved intentional misconduct or a knowing violation of law of that the Manager personally gained in fact a financial profit or other advantage to which such Manager was not legally entitled. Neither the amendment nor the repeal of this Section shall eliminate or reduce the effect of this Section with respect to any acts or omissions occurring, or any cause of action, suit or claim that, but for this Section would accrue or arise, prior to such amendment or repeal. 14. Conflicts of Interest. A Manager need not devote his full time to the Company's business, but shall devote such time as he, in his discretion, deems necessary to manage the Company's affairs in an efficient manner. Subject to the other express provisions of this Agreement or any employment agreement, each Manager, each officer and each agent of the Company, at any time and from tine to time, may engage in and possess interests in other business ventures of any and every type and description, independently or with others, including ventures in competition with the Company, with no obligation to offer to the Company or any other Manager, officer or agent the right to participate therein. Except as otherwise provided in this Agreement, the Company may transact business with any Manager, officer, agent or affiliate thereof provided the terms of those transactions are no less favorable than those the Company could obtain from unrelated third parties. 15. Management Rights of Member. The Member consents to the exercise by the Board of Managers of the powers conferred on it by this Agreement. Except as expressly provided herein, or as provided by non-waivable provisions of applicable law, no Member shall have any right to take part in the management or control of the Company's business or have any right or authority to act for or bind the Company. 16. Salaries. The salaries and other compensation, if any, of the Managers shall be fixed from time to time by the Member. Exhibit B OFFICERS 1. Officers Enumerated. The officers of the Company shall be a Chief Executive Officer, a President, one or more Vice Presidents, a Secretary, a Treasurer and a Chief Financial Officer, and such other officers as the Board of Managers may in its discretion elect. Any two or more offices may be held by the same person. 2. Election and Term of Office. All officers shall be elected by the Board of Managers at its first meeting held after the annual election of Managers. The officers need not be Managers. Unless elected for a lesser term, and subject always to the right of the Board of Managers to remove an officer with or without cause, each officer shall hold office until such officer's successor has been elected and qualified. 3. The Chief Executive Officer. The Chief Executive Officer, subject to the determinations of the Board of Managers, shall have general control and management of the business operations of the Company. The Chief Executive Officer shall, if he is a Manager, preside over all meetings of the Board of Managers in the absence or incapacity of the Chairman of the Board. In the absence or incapacity of any other officer of the Company, the Chief Executive Officers shall have the authority and may perform the duties of that officer. 4. The President. The President, subject to the determinations of the Board of Managers and the Chief Executive Officer, shall have general control and management of the business operations of the Company. The President shall, if he is a Manager, preside over all meetings of the Board of Managers in the absence or incapacity of the Chairman of the Board and the Chief Executive Officer. In the absence or incapacity of any other officer of the Company, the President shall have the authority and may perform the duties of that officer. 5. The Vice Presidents. Each Vice President, if any, shall report to the President and, in the absence or incapacity of the President and in order of seniority as fixed by the Board, have the authority and perform the duties of the President, and each shall have such other authority and perform such other duties as the Board of Managers may prescribe. 6. The Secretary. The Secretary shall (a) attend all meetings of the Board of Managers and record all votes and the minutes of all proceedings in a book to be kept for that purpose, (b) perform like duties for committees of the Board of Managers when required, (c) give, or cause to be given, notice of all special meetings of the Board of Managers, and (d) have such other authority and perform such other duties as usually pertain to the office or as may be prescribed by the Board of Managers. 7. The Treasurer. The Treasurer shall (a) have the care and custody of all the moneys and securities of the Company, (b) keep or cause to be kept complete and accurate books of account of all moneys received and paid on account of the Company, (c) sign such instruments as require the Treasurer's signature, and (d) have such other authority and perform such other duties as usually pertain to the office or as the Board of Managers may prescribe. 8. The Chief Financial Officer. The Board Of Managers may appoint a Chief Financial Officer. Subject to the control and supervision of the Board of Managers, the Chief Executive Officer and the President, the Chief Financial Officer shall have general charge of establishing and overseeing all financial and accounting policies and matters of the Company. The Chief Financial Officer shall also have such other powers and duties as may from time to time be properly prescribed by the Board of Managers, the Chief Executive Officer or the President. 9. Securities of Other Entities. The Chief Executive Officer, the President or the Treasurer may, with respect to any shares of stock or other securities issued by any other corporation or other business organization and held by the Company, exercise voting and similar rights on behalf of the Company and execute proxies for that purpose. In addition, any of such officers may endorse for sale or transfer and may sell or transfer for and on behalf of the Company any such stock or other securities and may appoint proxies or attorneys for that purpose. 10. Salaries. The salaries and other compensation of the Officers shall be fixed from time to time by the Board of Managers. Exhibit C CONTRIBUTION Member Capital Contribution Membership Interest - ------ -------------------- ------------------- Ogden Power Corporation $100 100% EX-99.T3B79 157 exhibit_t3b-79.txt Exhibit T3B-79 BYLAWS of Burney Mountain Power ARTICLE I Principal Executive Office The principal executive office of the corporation is located at 6055 East Washington Boulevard, Suite 608, Commerce, California 90040. ARTICLE II Meetings of Shareholders Section 1. Annual Meetings. The regular annual meeting of shareholders of the corporation shall be held on the 4th Tuesday of March of each year, at the hour of 9:30 a.m., provided that if the day is a legal holiday, then at the same time on the next day which is not a legal holiday. At the regular annual meeting of shareholders, directors shall be elected and any other business may be transacted which is within the powers of shareholders. Section 2. Special Meetings. Special meetings of shareholders may be called by the board of directors, or by the chairman of the board, if there be such an officer, or by the president or by the holders of shares entitled to cast not less than ten percent (10%) of the votes at such meeting. Section 3. Place of Meetings. Each annual or special meeting of shareholders shall be held at such location as may be determined by the board of directors, or if no determination is made at such place as may be determined by the chief executive officer or by any other officer authorized by the board of directors or by the chief executive officer to make such determination, and if no location is so determined at the principal executive office of the corporation. Section 4. Notice of Meetings. Notice of each annual or special meeting of shareholders shall be given as required by law and, subject to the requirements of applicable law, shall contain such information, and shall be given to such persons at such time and in such manner as the board of directors shall determine or, if no determination is made, as the chief executive officer or any other officer so authorized by the board of directors or by the chief executive officer shall determine. Section 5. Waiver of Notice. The transactions of any meeting of shareholders, however called and noticed, shall be as valid as though in a meeting duly held after regular call and notice if a quorum be present and before or after the meeting each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of such meeting, or an approval of the minutes thereof. Section 6. Conduct of Meetings. Subject to the requirements of applicable law, all annual and special meetings of shareholders shall be conducted in accordance with such rules and procedures as the board of directors may determine and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any annual or special meeting of shareholders shall be designated by the board of directors and, in the absence of any such designation, shall be the chief executive officer of the corporation or other person designated by the chief executive officer. Section 7. Action Without Meeting. Except as may be prohibited by the California General Corporation Law or by the Articles of Incorporation or by these bylaws, any action which may be taken at any annual or special meeting of shareholders may be taken without a meeting and without prior notice if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. If any such action is taken without a meeting, notice shall be given as required by law. ARTICLE III Board of Directors The authorized number of directors of the corporation shall not be less than three (3) nor more than seven (7) until changed by a duly adopted bylaw amending this Section 1. Section 1. The number of directors shall be fixed at four (4) until changed, within the limits specified above, by a duly adopted bylaw amending this Section 1 or by the Board of Directors. A majority of the fixed number of directors shall constitute a quorum. ARTICLE IV Meetings of Directors Section 1. Regular Meetings. Regular quarterly meetings of the board of directors shall be held on such dates as shall be fixed by the board of directors. Immediately following each annual meeting of shareholders, there shall be a regular meeting of the board of directors of the corporation for the purposes of organization, election of officers and the transaction of the other business. Notice of regular meetings of the board of directors is not required. Section 2. Special Meetings. Special meetings of the board of directors for any purpose may be called at any time by the chairman of the board, if there be such an officer, or by the president or by any vice president or by any two directors. Notice of the time and place of special meetings shall be given personally to each director, or communicated by telephone, or sent to each director by mail or other form of written communication. In case of notice by mail, telegraph or other form of written communication (i) it shall be deposited in the United States mail or Pacific Enterprises company mail or delivered to the telegraph company in the city in which the principal executive office of the corporation is located at least twenty-four (24) hours prior to the time of the meeting or (ii) delivered to the director's regular business office during normal business hours at least four (4) hours prior to the time of the meeting. In case notice is given personally or by telephone, it shall be given at least four (4) hours prior to the time of the meeting. Such mailing, telegraphing, delivering or giving of personal notice shall be legal notice to the directors. Section 3. Place of Meetings. Each regular or special meeting of the board of directors shall be held at the location determined as follows: The board of directors may designate any place, within or without the state of California, for the holding of any meeting; if no such designation is made, at such location as is designated by the person or persons calling the meeting; and if neither of such designations is made, at the principal executive office of the corporation. Section 4. Conduct of Meetings. Subject to the requirements of applicable law, all regular and special meetings of the board of directors shall be conducted in accordance with such rules and procedures as the board of directors may approve and, as to matters not governed by such rules and procedures, as the chairman of such meeting shall determine. The chairman of any regular or special meeting shall be the chief executive officer or any other person that the board of directors may designate. Section 5. Conference Telephones. Members of the board of directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. Participation in a meeting pursuant to this Section 5 constitutes presence in person at such meeting. Section 6. Action Without Meeting. Any action required or permitted to be taken by the board of directors may be taken without a meeting if all members of the board of directors shall individually or collectively consent in writing to such action. Such written consent shall be filed with the minutes of the proceedings of the board of directors. Such action by written consent shall have the same force and effect as a unanimous vote of directors. Committees of the board of directors may not take action by written consent without a meeting. ARTICLE V Officers Section 1. Officers. The officers of the corporation shall be a president, a vice president, a secretary and a treasurer. The corporation may have, at the discretion of the board of directors, a chairman of the board, additional vice presidents, assistant secretaries, assistant treasurers, and such other officers as may be necessary or advisable for the conduct of the business. One person may hold two or more offices. Section 2. Election. The officers shall be elected by the board of directors and shall hold office at the pleasure of the board of directors. In the absence of further action by the board of directors, all officers shall hold office until the election, qualification and acceptance of office by their respective successors. ARTICLE VI Chairman of the Board The Chairman of the Board, if there be such an officer, shall exercise and perform such powers and duties as may be assigned to him by the board of directors. ARTICLE VII President Subject to supervisory powers as may be given by the board of directors to the chairman of the board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall have all of the powers and shall perform all of the duties which are inherent in the office of the president. He shall have general charge and supervision of the corporation's business and all of its officers, agents and employees. He shall fix the compensation of the remaining officers of the corporation, other than the chairman, if there be one, and shall have the additional powers and perform further duties as may be prescribed by the board of directors. ARTICLE VIII Vice Presidents In the president's absence, disability or refusal to act, the vice presidents in order of their rank shall perform all of the duties of the president and when so acting shall have all the president's powers and be subject to all the restrictions upon the president. The vice presidents shall have other powers and perform additional duties as may be prescribed by the board of directors or by the chief executive officer. ARTICLE IX Secretary Section 1. Duties. The secretary shall , at the principal executive office, a book of minutes of all meetings of directors and of shareholders, with the time and place of holding, whether regular or special, and if special how authorized and the notice given, the names of those present at meetings of directors, the number of shares represented in person or by written proxy at meetings of shareholders and the proceedings. The secretary shall at the principal executive office a share register showing the names of the shareholders and their addresses, the number of shares and classes of shares held by each, the number and date of certificate issued for the shares and the number and date of cancellation of every certificate surrendered. The secretary shall give notice of all the meetings of the shareholders and of the board of directors required by the bylaws or by law, and he shall the seal of the corporation in safe custody and shall have other powers and perform additional duties as may be prescribed by the board of directors, or by the chief executive officer. Section 2. Agent for Service of Process. Unless the board of directors shall designate another person to be the agent for service of process in California, the secretary shall be the agent for service of process. Section 3. Assistant Secretaries. It shall be the duty of the assistant secretaries to assist the secretary in the performance of his duties. In the absence or disability of the secretary, his duties may be performed by an assistant secretary. ARTICLE X Treasurer and Chief Financial Officer Section 1. Chief Financial Officer. Unless the board of directors shall designate another officer to be the chief financial officer, the treasurer shall be the chief financial officer. Section 2. Duties. The treasurer shall have custody and account for all funds of the corporation which may be deposited with him or in banks or other places of deposit. He shall disburse funds which have been duly approved for disbursement. He shall sign notes, bonds or other evidences of indebtedness for the corporation as the board of directors may authorize. He shall perform other duties which may be assigned by the board of directors or by the chief executive officer. Section 3. Assistant Treasurers. It shall be the duty of the assistant treasurers to help the treasurer in the performance of his duties. In the absence or disability of the treasurer, his duties may be performed by an assistant treasurer. ARTICLE XI Indemnification of Agents of the Corporation; Purchase of Liability Insurance Section 1. For the purposes of this Article, "agent" means any person who is or was a director, officer, employee or other agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the Corporation or of another enterprise at the request of such predecessor corporation; "proceeding" means any threatened pending or completed action or proceeding, whether civil, criminal, administrative, or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification under Section 4 or paragraph (c) of Section 5 of this Article. Section 2. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed proceeding (other than an action by or in the right of the Corporation to procure a judgment in its favor) by reason of the fact that such person is or was an agent of the Corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the Corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the Corporation or that the person had reasonable cause to believe that the person's conduct was unlawful. Section 3. The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was an agent of the Corporation, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith, in a manner such person believed to be in the best interests of the Corporation and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. No indemnification shall be made under this Section 3: (a) In respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation in the performance of such person's duty to the Corporation, unless and only to the extent that the court in which such proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for the expenses which such court shall determine; (b) Of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval or (c) Of expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval. Section 4. To the extent that an agent of the Corporation has been successful on the merits in defense of any proceeding referred to in Section 2 or 3 or in defense of any claim, issue or matter therein, the agent shall be indemnified against expenses actually and reasonably incurred by the agent in connection therewith. Section 5. Except as provided in Section 4, any indemnification under this Article shall be made by the Corporation only if authorized in the specific case, upon a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in Section 2 or 3, by: (a) A majority vote of a quorum consisting of directors who are not parties to such proceeding; (b) Approval or ratification by the affirmative vote of a majority of the shares of the Corporation entitled to vote represented at a duly held meeting at which a quorum is present or by the written consent of holders of a majority of the outstanding shares entitled to vote, and by the affirmative vote or written consent of such greater proportion of the shares of any class or series as may be provided in the Articles of Incorporation for such action. For purposes of determining the required quorum of any meeting of shareholders called to approve or ratify indemnification of an agent and the vote or written consent required therefor, the shares owned by the person to be indemnified shall not be considered outstanding and shall not be entitled to vote thereon; or (c) The court in which such proceeding is or was pending, upon application made by the Corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not such application by the agent, attorney or other person is opposed by the Corporation. Section 6. Expenses incurred in defending any proceeding may be advanced by the Corporation prior to the final disposition of such proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount unless it shall be determined ultimately that the agent is entitled to be indemnified as authorized in this Article. Section 7. This Article shall create a right of indemnification for each person referred to in this Article, whether or not the proceeding to which the indemnification relates arose in whole or in part prior to adoption of this Article, and in the event of the death of such agent, whether before or after initiation of such proceeding, such right shall extend to such person's legal representatives. This Article does not apply to any proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in such person's capacity as such, even though such person may also be an agent of the Corporation as defined in Section 1. Nothing contained in this Article shall limit any right to indemnification to which such a trustee, investment manager or other fiduciary may be entitled by contract or otherwise, which shall be enforceable to the extent permitted by applicable law other than this Article. In addition to the maximum extent permitted by applicable law, the right of indemnification hereby given shall not be exclusive of or otherwise affect any other rights such agent may have to indemnification, whether by law or under any contract, insurance policy or otherwise. Section 8. No indemnification or advance shall be made under this Article, except as provided in Section 4 or paragraph (c) of Section 5, in any circumstance where it appears: (a) That it would be inconsistent with a provision of the Articles of Incorporation, these ByLaws, a resolution of the shareholders or an agreement in effect at the time of the accrual of the alleged cause of action asserted in the proceeding in which the expenses were incurred or other amounts were paid, which prohibits or otherwise limits indemnification; or (b) That it would be inconsistent with any condition expressly imposed by a court in approving a settlement. Section 9. Upon determination by the Board of Directors, the Corporation may purchase and maintain insurance on behalf of any agent of the Corporation against any liability asserted against or incurred by the agent in such capacity or arising out of the agent's status as such, whether or not the Corporation would have the power to indemnify the agent against such liability under the provisions of this Article. ARTICLE XII Annual Reports The annual report to shareholders prescribed in Section 1501 of the California General Corporation Law is waived. ARTICLE XIII Amendments to Bylaws Section 1. Shareholder Vote. New bylaws may be adopted or these bylaws may be amended or repealed by the vote of shareholders exercising a majority of the voting power represented by the outstanding shares, or by the written consent of shareholders exercising such voting powers. Section 2. Board of Directors Vote. Subject to the right of shareholders as provided in Section 1 of this Article XIII, bylaws may be adopted, amended or repealed by a majority of the board of directors, except a bylaw or amendment changing the authorized number of directors, a bylaw or amendment changing the power of the board of directors to fill a vacancy or vacancies occurring on the board of directors by reason of the removal of a director or directors, and any other bylaw or amendment which by law or by the articles of incorporation or by these bylaws may be adopted only by the shareholders. EX-99.T3B80 158 exhibit_t3b-80.txt Exhibit T3B-80 BYLAWS OF ALEXANDRIA/ARLINGTON RESOURCE RECOVERY CORPORATION * ARTICLE I OFFICES The Corporation may have such offices at such places, both within and without the Commonwealth of Virginia, as the Board of Directors from time to time determines or as the business of the Corporation from time to time requires. ARTICLE II MEETINGS OF THE STOCKHOLDERS Section 1. Annual Meetings. Annual meetings of the stockholders shall be held at 1:00 p.m. on the 15th day of June beginning in 1985 if not a legal holiday, or, if a legal holiday, then on the next secular day following, or at such other date and time during the month of June and at such place (within or without the Commonwealth of Virginia) as is designated from time to time by the Board of Directors and stated in the notice of the meeting. At each annual meeting the stockholders shall elect a Board of Directors and shall transact such other business as may properly be brought before the meeting. Section 2. Special Meetings. Unless otherwise prescribed by law, the Articles of Incorporation or these Bylaws, special meetings of the stockholders for any purpose or purposes may be called by the Chairman of the Board, if any, or by the President or Secretary upon the written request of a majority of the total number of directors of the Corporation or of holders owning not less than one-tenth (1/10) of the shares of capital stock of the Corporation issued and outstanding and entitled to vote at any such meeting. Requests for special meetings shall state the purpose or purposes of the proposed meeting. Section 3. Notices of Annual and Special Meetings. (a) Except as otherwise provided by law, the Articles of Incorporation or these Bylaws, written notice of any annual or special meeting of the stockholders shall state the place, date and time thereof and, in the case of a special meeting, the purpose or purposes for which the meeting is called, and shall be given to each stockholder of record entitled to vote at such meeting not less than ten (10) nor more than fifty (50) days prior to the meeting. (b) Notice of any meeting of stockholders (whether annual or special) to act upon an amendment of the Articles of Incorporation, a reduction of stated capital or a plan of merger, consolidation or sale of all or substantially all of the Corporation's assets shall be given to each stockholder of record entitled to vote at such meeting not less than twenty-five (25) nor more than fifty (50) days before the date of such meeting. Any such notice shall be accompanied by a copy of the proposed amendment or plan of reduction, merger, consolidation or sale. Section 4. List of Stockholders. At least ten (10) days (but not more than fifty (50) days) before any meeting of the stockholders, the officer or transfer agent in charge of the stock transfer books of the Corporation shall prepare and make a complete alphabetical list of the stockholders entitled to vote at such meeting, which list shows the address of each stockholder and the number of shares registered in the name of each stockholder. The list so prepared shall be maintained at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held, and shall be open to inspection by any stockholder, for any purpose germane to the meeting, during ordinary business hours during a period of no less than ten (10) days prior to the meeting. The list also shall be produced and kept open at the meeting (during the entire duration thereof) and, except as otherwise provided by law, may be inspected by any stockholder or proxy of a stockholder who is present in person at such meeting. Section 5. Presiding Officers; Order of Business. (a) Meetings of the stockholders shall be presided over by the Chairman of the Board, if any, or, if the Chairman is not present (or, if there is none), by the President, or, if the President is not present, by a Vice President, or, if a Vice President is not present, by such person who is chosen by the Board of Directors, or, if none, by a chairperson to be chosen at the meeting by stockholders present in person or by proxy who own a majority of the shares of capital stock of the Corporation entitled 2 to vote and represented at such meeting. The secretary of meetings shall be the Secretary of the Corporation, or, if the Secretary is not present, an Assistant Secretary, or, if an Assistant Secretary is not present, such person as may be chosen by the Board of Directors, or, if none, by such person who is chosen by the Chairperson at the meeting. (b) The following order of business, unless otherwise ordered at the meeting by the chairperson thereof, shall be observed as far as practicable and consistent with the purposes of the meeting: (1) Call of the meeting to order. (2) Presentation of proof of mailing of notice of the meeting and, if the meeting is a special meeting, the call thereof. (3) Presentation of proxies. (4) Determination and announcement that a quorum is present. (5) Reading and approval (or waiver thereof) of the minutes of the previous meeting. (6) Reports, if any, of officers. (7) Election of directors, if the meeting is an annual meeting or a meeting called for such purpose. (8) Consideration of the specific purpose or purposes for which the meeting has been called (other than the election of directors). (9) Transaction of such other business as may properly come before the meeting. (10) Adjournment. Section 6. Quorum; Adjournments. (a) The holders of a majority of the shares of capital stock of the Corporation issued and outstanding and entitled to vote at any given meeting present in person or by proxy shall be necessary to and shall constitute a quorum for the transaction of business at all meetings of the stockholders, except as otherwise provided by law or by the Articles of Incorporation. (b) If a quorum is not present in person or by proxy at any meeting of stockholders, the stockholders entitled to vote thereat, present in person or by proxy, shall have the power to adjourn the meeting from time to time, without notice of the 3 adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken, until a quorum is present in person or by proxy. (c) Even if a quorum is present in person or by proxy at any meeting of the stockholders, the stockholders entitled to vote thereat present in person or by proxy shall have the power to adjourn the meeting from time to time for good cause, without notice of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken, until a date which is not more than thirty (30) days after the date of the original meeting. (d) Any business which might have been transacted at a meeting as originally called may be transacted at any meeting held after adjournment as provided in this Section 6 at which reconvened meeting a quorum is present in person or by proxy. Anything in paragraph (b) of this Section 6 to the contrary notwithstanding, if an adjournment is for more than thirty (30) days, or if after an adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote thereat. Section 7. Voting. (a) At any meeting of stockholders every stockholder having the right to vote shall be entitled to vote in person or by proxy. Except as otherwise provided by law or by the Articles of Incorporation, each stockholder of record shall be entitled to one vote (on each matter submitted to a vote) for each share of capital stock registered in his, her or its name on the books of the Corporation. (b) All elections of directors, and except as otherwise provided by law or by the Articles of Incorporation, all other matters, shall be determined by a vote of a majority of the shares present in person or represented by proxy and voting on such other matters. Section 8. Action by Consent. Any action required or permitted to be taken at any meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent setting forth the action so taken, shall be signed by all of the stockholders entitled to vote with respect to the subject matter thereof. All written consents shall be filed with the minutes of the meetings of the stockholders. ARTICLE III DIRECTORS 4 Section 1. General Powers; Number; Tenure. The business and affairs of the Corporation shall be managed under the direction of its Board of Directors, which may exercise all powers of the Corporation and perform or authorize the performance of all lawful acts and things which are not by law, the Articles of Incorporation or these Bylaws directed or required to be exercised or performed by the stockholders. The number of directors of the Corporation shall be [five (5).] The directors shall be elected at the annual meeting of the stockholders (except as otherwise provided in Section 2 of this Article III), and each director shall hold office until the next succeeding annual meeting of the stockholders or until his successor has been elected and has qualified. Directors need not be stockholders nor residents of the Commonwealth of Virginia. Section 2. Vacancies. Any vacancy occurring in the Board of Directors, including a vacancy resulting from an increase by not more than two (2) in the number of directors, may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board of Directors. Section 3. Removal; Resignation. (a) Except as otherwise provided by law, the Articles of Incorporation or these Bylaws, at any meeting of the stockholders called expressly for such purpose any director may be removed, with or without cause, by a vote of stockholders holding a majority of the shares issued and outstanding and entitled to vote at an election of directors. (b) Any director may resign at any time by giving written notice to the Board of Directors, the Chairman of the Board, the President, or the Secretary of the Corporation. Unless otherwise specified in such written notice, a resignation shall take effect upon delivery thereof to the Board of Directors or the designated officer. A resignation need not be accepted in order for it to be effective. Section 4. Place of Meetings. The Board of Directors may hold both regular and special meetings either within or without the Commonwealth of Virginia, at such place as the Board from time to time deems advisable. Section 5. Annual Meeting. The annual meeting of each newly elected Board of Directors shall be held as soon as is practicable (but in no event more than ten (10) days) following the annual meeting of stockholders, and no notice to the newly elected directors of such meeting shall be necessary for such meeting to be lawful, provided a quorum is present thereat. Section 6. Regular Meetings. Additional regular meetings of the Board of Directors may be held without notice, at 5 such time and place as from time to time may be determined by the Board of Directors. Section 7. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board or by the President or by any two (2) directors upon two (2) days' notice to each director if such notice is delivered personally or sent by telegram, or upon five (5) days' notice if sent by mail. Section 8. Quorum; Adjournments. A majority of the number of directors then in office shall constitute a quorum for the transaction of business at each and every meeting of the Board of Directors, and the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors, except as may otherwise specifically be provided by law, the Articles of Incorporation or these Bylaws. If a quorum is not present at any meeting of the Board of Directors, the directors present may adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum is present. Section 9. Compensation. Directors shall be entitled to such compensation for their services as directors as from time to time may be fixed by the Board of Directors and in any event shall be entitled to reimbursement of all reasonable expenses incurred by them in attending directors' meetings. Any director may waive compensation for any meeting. No director who receives compensation as a director shall be barred from serving the Corporation in any other capacity or from receiving compensation and reimbursement of reasonable expenses for any or all such other services. Section 10. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting and without prior notice if a written consent in lieu of such meeting which sets forth the action so taken is signed either before or after such action by all directors. All written consents shall be filed with the minutes of the Board's proceedings. Section 11. Meetings by Telephone or Similar Communications. The Board of Directors may participate in meetings by means of conference telephone or similar communications equipment, whereby all directors participating in the meeting can hear each other at the same time, and participation in any such meeting shall constitute presence in person by such director at such meeting. A written record shall be made of all actions taken at any meeting conducted by means of a conference telephone or similar communications equipment. ARTICLE IV COMMITTEES 6 Section 1. Executive Committee. (a) By resolution duly adopted by a majority of the whole Board, the Board of Directors may designate two or more directors to constitute an Executive Committee. One of such directors shall be designated as Chairman of the Executive Committee. Each member of the Executive Committee shall continue as a member thereof until the expiration of his term as a director, or until his earlier resignation from the Executive Committee, in either case unless sooner removed as a member of the Executive Committee or as a director by any means authorized by these Bylaws. (b) The Executive Committee shall have and may exercise all of the rights, powers and authority of the Board of Directors, except as expressly limited by the Stock Corporation Act of the Commonwealth of Virginia, as amended from time to time. (c) The Executive Committee shall fix its own rules of procedure and shall meet at such times and at such place or places as may be provided by its rules. The Chairman of the Executive Committee, or, in the absence of a Chairman a member of the Executive Committee chosen by a majority of the members present, shall preside at meetings of the Executive Committee, and another member thereof chosen by the Executive Committee shall act as Secretary. A majority of the Executive Committee shall constitute a quorum for the transaction of business, and the affirmative vote of a majority of the members thereof shall be required for any action of the Executive Committee. The Executive Committee shall keep minutes of its meetings and deliver such minutes to the Board of Directors. Section 2. Other Committees. The Board of Directors, by resolution duly adopted by a majority of directors at a meeting at which a quorum is present, may appoint such other committee or committees as it shall deem advisable and with such limited authority as the Board of Directors shall from time to time determine. Section 3. Other Provisions Regarding Committees. (a) The Board of Directors shall have the power at any time to fill vacancies in, change the membership of, or discharge any committee. (b) Members of any committee shall be entitled to such compensation for their services as such as from time to time may be fixed by the Board of Directors and in any event shall be entitled to reimbursement of all reasonable expenses incurred in attending committee meetings. Any member of a committee may waive compensation for any meeting. No committee member who receives compensation as a member of any one or more committees shall be 7 barred from serving the Corporation in any other capacity or from receiving compensation and reimbursement of reasonable expenses for any or all such other services. (c) Unless prohibited by law, the provisions of Section 10 ("Action by Consent") and Section 11 ("Meetings by Telephone or Similar Communications") of Article III shall apply to all committees from time to time created by the Board of Directors. 8 ARTICLE V OFFICERS Section 1. Positions. The officers of the Corporation shall be chosen by the Board of Directors and shall consist of a President, one or more Vice Presidents (if and to the extent required by law or if not required, if the Board of Directors from time to time appoints a Vice President or Vice Presidents), a Secretary and a Treasurer. Only the President need be a director. The Board of Directors also may choose a Chairman of the Board, one or more Assistant Secretaries and/or Assistant Treasurers and such other officers and/or agents as the Board from time to time deems necessary or appropriate. The Board of Directors may delegate to the President of the Corporation the authority to appoint any officer or agent of the Corporation and to fill a vacancy other than the Chairman of the Board, President, Secretary or Treasurer. The election or appointment of any officer of the Corporation in itself shall not create contract rights for any such officer. All officers of the Corporation shall exercise such powers and perform such duties as from time to time shall be determined by the Board of Directors. Any two or more offices may be held by the same person except the offices of President and Secretary and of President and Vice President. Section 2. Term of Office; Removal. Each officer of the Corporation shall hold office at the pleasure of the Board and any officer may be removed, with or without cause, at any time by the affirmative vote of a majority of the directors then in office, provided that any officer appointed by the President pursuant to authority delegated to the President by the Board of Directors may be removed, with or without cause, at any time whenever the President in his or her absolute discretion shall consider that the best interests of the Corporation shall be served by such removal. Removal of an officer by the Board or by the President, as the case may be, shall not prejudice the contract rights, if any, of the person so removed. Vacancies (however caused) in any office may be filled for the unexpired portion of the term by the Board of Directors (or by the President in the case of a vacancy occurring in an office to which the President has been delegated the authority to make appointments). Section 3. Compensation. The salaries of all officers of the Corporation shall be fixed from time to time by the Board of Directors, and no officer shall be prevented from receiving a salary by reason of the fact that he also receives from the Corporation compensation in any other capacity. Section 4. Chairman of the Board. The Chairman of the Board (if the Board of Directors so deems advisable and selects one) shall be an officer of the Corporation and, subject to the direction 9 of the Board of Directors, shall perform such executive, supervisory and management functions and duties as from time to time may be assigned to him or her by the Board. The Chairman of the Board, if present, shall preside at all meetings of the stockholders and all meetings of the Board of Directors. Section 5. President. The President shall be the chief executive officer of the Corporation and, subject to the direction of the Board of Directors, shall have general charge of the business, affairs and property of the Corporation and general supervision over its other officers and agents. In general, the President shall perform all duties incident to the office of President of a stock corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall have full authority to determine all operating policies, including, but not limited to, personnel, employment and labor policies. Unless otherwise prescribed by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend, act and vote at any meeting of security holders of other corporations in which the Corporation may hold securities. At any such meeting the President shall possess and may exercise any and all rights and powers incident to the ownership of such securities which the Corporation possesses and has the power to exercise. The Board of Directors from time to time may confer like powers upon any other person or persons. Section 6. Vice Presidents. In the absence or disability of the President, the Vice President, if any (or in the event there is more than one, the Vice Presidents in the order designated, or in the absence of any designation, in the order of their election), shall perform the duties and exercise the powers of the President. The Vice President(s) also generally shall assist the President and shall perform such other duties and have such other powers as from time to time may be prescribed by the Board of Directors. Section 7. Secretary. The Secretary shall attend all meetings of the Board of Directors and of the stockholders and shall record all votes and the proceedings of all meetings in a book to be kept for such purposes. The Secretary also shall perform like duties for the Executive Committee or other committees, if required by any such committee. The Secretary shall give (or cause to be given) notice of all meetings of the stockholders and all special meetings of the Board of Directors and shall perform such other duties as from time to time may be prescribed by the Board of Directors, the Chairman of the Board or the President. The Secretary shall have custody of the seal of the Corporation, shall have authority (as shall any Assistant Secretary) to affix the same to any instrument requiring it, and to attest the seal by his or her signature. The Board of Directors may give general authority to 10 officers other than the Secretary or any Assistant Secretary to affix the seal of the Corporation and to attest the affixing thereof by his or her signature. Section 8. Assistant Secretary. The Assistant Secretary, if any (or in the event there is more than one, the Assistant Secretaries in the order designated, or in the absence of any designation, in the order of their election), in the absence or disability of the Secretary, shall perform the duties and exercise the powers of the Secretary. The Assistant Secretary(ies) shall perform such other duties and have such other powers as from time to time may be prescribed by the Board of Directors. Section 9. Treasurer. The Treasurer shall have the custody of the corporate funds, securities, other similar valuable effects, and evidences of indebtedness, shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as from time to time may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation in such manner as may be ordered by the Board of Directors from time to time and shall render to the Chairman of the Board, the President and the Board of Directors, at regular meetings of the Board or whenever any of them may so require, an account of all transactions and of the financial condition of the Corporation. Section 10. Assistant Treasurer. The Assistant Treasurer, if any (or in the event there is more than one, the Assistant Treasurers in the order designated, or in the absence of any designation, in the order of their election), in the absence or disability of the Treasurer, shall perform the duties and exercise the powers of the Treasurer. The Assistant Treasurer(s) shall perform such other duties and have such other powers as from time to time may be prescribed by the Board of Directors. ARTICLE VI NOTICES Section 1. Form; Delivery. Any notice required or permitted to be given to any director, officer, stockholder or committee member shall be given in writing, either personally or by first--class mail with postage prepaid, in either case addressed to the recipient at his or her address as it appears in the records of the Corporation. Personally delivered notices shall be deemed to be given at the time they are delivered at the address of the named recipient as it appears in the records of the Corporation, and mailed notices shall be deemed to be given at the time they are deposited in the United States mail. Notice to a director also may be given by telegram sent to his address as it appears on the 11 records of the Corporation and shall be deemed given at the time delivered at such address. Section 2. Waiver; Effect of Attendance. Whenever any notice is required to be given by law, the Articles of Incorporation or these Bylaws, a written waiver thereof, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be the equivalent of the giving of such notice. In addition, any stockholder who attends a meeting of stockholders in person, or who is represented at such meeting by a proxy, or any director or committee member who attends a meeting of the Board of Directors or a committee thereof shall be deemed to have had timely and proper notice of the meeting, unless such stockholder (or his or her proxy) or director or committee member attends for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called or convened. ARTICLE VII INDEMNIFICATION AND EXCULPATION; TRANSACTIONS WITH AFFILIATED PERSONS Section 1. Indemnification and Exculpation. Reference is hereby made to Section 13.1--3.1 of the Stock Corporation Act of the Commonwealth of Virginia (or any successor provision thereto). The Corporation shall indemnify each person who may be indemnified (the "Indemnitees") pursuant to such section, to the full extent permitted thereby. In each and every situation where the Corporation may do so under such section, the Corporation hereby obligates itself to so indemnify the Indemnitees, and in each case, if any, where the Corporation must make certain investigations on a case--by--case basis prior to indemnification, the Corporation hereby obligates itself to pursue such investigations diligently, it being the specific intention of these Bylaws to obligate the Corporation to indemnify each person whom it may indemnify to the fullest extent permitted by law at any time and from time to time. To the extent not prohibited by Section 13.1--3.1 of the Stock Corporation Act of the Commonwealth of Virginia (or any other provision of the Stock Corporation Act of the Commonwealth of Virginia), the Indemnitees shall not be liable to the Corporation except for their own individual willful misconduct or actions taken in bad faith. Section 2. Common or Interested Officers and Directors. The officers and directors shall exercise their powers and duties in good faith and with a view to the best interests of the Corporation. No contract or other transaction between the Corporation and one or more of its officers or directors, or between the Corporation and any corporation, firm, association, or other entity in which one or more of the officers or directors of the Corporation are officers or directors, or are pecuniarily or otherwise interested, shall be 12 either void or voidable because of such common directorate, officership or interest, because such officers or directors are present at the meeting of the Board of Directors or any committee thereof which authorizes, approves or ratifies the contract or transaction, or because his, her or their votes are counted for such purpose, if (unless otherwise prohibited by law) any of the conditions specified in the following paragraphs exist: (a) the material facts of the common directorate or interest or contract or transaction are disclosed or known to the Board of Directors or committee thereof and the Board or committee authorizes or ratifies such contract or transaction in good faith by the affirmative vote of a majority of the disinterested directors, even though the number of such disinterested directors may be less than a quorum; or (b) the material facts of the common directorate or interest or contract or transaction are disclosed or known to the stockholders entitled to vote thereon and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is fair and commercially reasonable to the Corporation at the time it is authorized, approved or ratified by the Board, a committee thereof, or the stockholders, as the case may be. Common or interested directors may be counted in determining whether a quorum is present at any meeting of the Board of Directors or committee thereof which authorizes, approves or ratifies any contract or transaction, and may vote thereat to authorize any contract or transaction with like force and effect as if he, she or they were not such officers or directors of such other corporation or were not so interested. ARTICLE VIII STOCK CERTIFICATES Section 1. Form; Signatures. Each stockholder who has fully paid for any stock of the Corporation shall be entitled to receive a certificate representing such shares, and such certificate shall be signed by the Chairman of the Board (if any) or the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation. Signatures on the certificate may be facsimile, in the manner prescribed by law. Each certificate shall exhibit on its face the number and class (and series, if any) of the shares it represents. Each certificate also shall state upon its face the name of the person to whom it is issued and that the Corporation is organized under the laws of the Commonwealth of Virginia. Each 13 certificate may (but need not) be sealed with the seal of the Corporation or facsimile thereof. In the event any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate ceases to be such officer, transfer agent or registrar before the certificate is issued, the certificate nevertheless may be issued by the Corporation with the same effect as if such person were such officer at the date of issue of the certificate. All stock certificates representing shares of capital stock which are subject to restrictions on transfer or to other restrictions may have imprinted thereon a notation of such restriction. Section 2. Registration of Transfer. Upon surrender to the Corporation or to any transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, the Corporation, or its transfer agent, shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon the Corporation's books. Section 3. Registered Stockholders. Except as otherwise provided by law, the Corporation shall be entitled to recognize the exclusive right of a person who is registered on its books as the owner of shares of its capital stock to receive dividends or other distributions (to the extent otherwise distributable or distributed), to vote (in the case of voting stock) as such owner, and to hold liable for calls and assessments a person who is registered on its books as the owner of shares of its capital stock. The Corporation shall not be bound to recognize any equitable or legal claim to or interest in such shares on the part of any other person. The Corporation (or its transfer agent) shall not be required to send notices or dividends to a name or address other than the name or address of the stockholders appearing on the stock ledger maintained by the Corporation (or by the transfer agent or registrar, if any), unless any such stockholder shall have notified the Corporation (or the transfer agent or registrar, if any), in writing, of another name or address at least ten (10) days prior to the mailing of such notice or dividend. Section 4. Record Date. In order that the Corporation may determine the stockholders of record who are entitled (i) to notice of or to vote at any meeting of stockholders or any adjournment thereof, (ii) to express written consent to corporate action in lieu of a meeting, (iii) to receive payment of any dividend or other distribution, or (iv) to allotment of any rights or to exercise any rights in respect of any change, conversion or exchange of stock for the purpose of any other lawful action or in order that the Corporation may make a determination of the stockholders of record for any other lawful purpose, the Board of Directors, in advance, may fix a date as the record date for any 14 such determination. Such date shall not be more than fifty (50) days nor less than ten (10) days before the date of such meeting, nor more than fifty (50) days prior to the date of any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting taken pursuant to Section 6 of Article II; provided, however, that the Board of Directors, in its discretion, may fix a new record date for the adjourned meeting. Section 5. Lost, Stolen or Destroyed Certificate. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation which is claimed to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors, in its discretion, may require as a condition precedent to issuance that the owner of such lost, stolen or destroyed certificate, or his or her legal representative, advertise the same in such manner as the Board shall require and/or to give the Corporation a bond in such sum, or other security in such form, as the Board may direct, as indemnity against any claim that may be made against the Corporation with respect to the certificate claimed to have been lost, stolen or destroyed. ARTICLE IX GENERAL PROVISIONS Section 1. Dividends. Subject to the Stock Corporation Act of the Commonwealth of Virginia and to any provisions of the Articles of Incorporation relating to dividends, dividends upon the outstanding capital stock of the Corporation may be declared by the Board of Directors at any annual, regular or special meeting and may be paid in cash, in property or in shares of the Corporation's capital stock. Section 2. Reserves. The Board of Directors, in its sole discretion, may fix a sum which may be set aside or reserved over and above the paid--in capital of the Corporation for working capital or as a reserve for any proper purpose, and from time to time may increase, diminish or vary such fund or funds. Section 3. Fiscal Year. The fiscal year of the Corporation shall be as determined from time to time by the Board of Directors. Section 4. Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its incorporation and the words "Corporate Seal" and "Commonwealth of Virginia." 15 Section 5. Amendment of the Bylaws. To the extent not prohibited by law, the Board of Directors shall have the power to make, alter and repeal these Bylaws, and to adopt new bylaws, in all cases by an affirmative vote of a majority of the whole Board, provided that notice of the proposal to make, alter or repeal these Bylaws, or to adopt new bylaws, is included in the notice of the meeting of the Board of Directors at which such action takes place. 16 Exhibit T3B-80 WRITTEN CONSENT IN LIEU OF A SPECIAL MEETING OF THE BOARD OF DIRECTORS OF ALEXANDRIA/ARLINGTON RESOURCE RECOVERY CORPORATION In lieu of a Special Meeting of the Board of Directors of Alexandria/Arlington Resource Recovery Corporation (the "Corporation"), the undersigned, being all of the directors of the Corporation, hereby unanimously agree to the following resolutions: RESOLVED: That the resignation of A. S. McGaughan, Jr. as Treasurer and a member of the Board of Directors of the Corporation dated January 1, 1985 be and it is hereby accepted by the Board of Directors of the Corporation, and that L. C. Nussdorf is hereby appointed Treasurer of the Corporation to serve in such office for the remainder of the term of A. S. McGaughan, Jr. and until his successor is duly elected and qualified. RESOLVED: That the vacancy on the Board of Directors shall not be filled, and that Article III, Section 1 of the By-Laws of the Corporation shall hereby be amended to reduce the number of Directors from five to four. Each Director, by signing this consent, waives notice of the time, place and purpose of such Special Meeting of the Board of Directors and agrees to the transaction of the business of such Special Meeting by unanimous written consent of all of the Directors in lieu of such meeting. Dated: January 1,1985 APPROVED: /s/ J.M. Kenith /s/ A.J. Clark - -------------------------------------- ------------------------------- J.M. Kenith A.J. Clark /s/ W.D. Carroll /s/ L.C. Nussdorf - -------------------------------------- ------------------------------- W.D. Carroll L.C. Nussdorf OGDEN MARTIN SYSTEMS OF ALEXANDRIA/ARLINGTON, INC. Action by Unanimous Consent in Writing of the Sole Shareholder October 22, 1985 The undersigned, constituting the holder of all the outstanding shares of Ogden Martin Systems of Alexandria/Arlington, Inc., a Virginia corporation, by unanimous consent in writing pursuant to Section 13.1-28 of the Virginia Stock Corporation Act, without the formality of convening a meeting, do hereby severally and collectively consent to the following action by the Corporation: RESOLVED, that Article III, Section 1 of the By-Laws of this Corporation be and hereby is amended to change the number of Directors from "four" to "not less than three nor more than five". OGDEN MARTIN SYSTEMS, INC. By: /s/ Bruce W. Stone --------------------------------------- Bruce W. Stone, Vice President 18 Exhibit T3B-80 By-Laws Amendment Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: Exhibit T3B-80 "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co--Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporation listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing-resolutions. /s/ R. Richard Ablon /s/ Scott G. Mackin --------------------------------- ------------------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ Bruce W. Stone -------------------------------- BRUCE W. STONE 21 Exhibit T3B-80 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. Exhibit T3B-80 EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. Exhibit T3B-80 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. Exhibit T3B-80 EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. EX-99.T3B81 159 exhibit_t3b-81.txt Exhibit T3B-81 OGDEN MARTIN SYSTEMS OF BRISTOL, INC. * * * * * BY - LAWS * * * * * ARTICLE I OFFICES Section 1. The principal office shall be located in Hartford, Connecticut. Section 2. The corporation may also have offices at such other places both within and without the State of Connecticut as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held in the City of New York, State of New York, at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as may be determined by the board of directors, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice of the annual meeting stating the place, day and hour of the meeting shall be delivered not less than seven nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Connecticut as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of shareholders may be called at any time, for any purpose or purposes, by the board of directors or by such other persons as may be authorized by law. Section 3. Written or printed notice of a special meeting stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered not less than seven nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer 2 or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of 3 a greater number of shares of stock is required by law or the certificate of incorporation. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney -- in-fact. Section 4. Any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE V DIRECTORS Section 1. The number of directors shall be not less than three nor more than five. Directors need not be residents of the State of Connecticut nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. 4 Section 2. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors. A director elected to fill a vacancy shall be elected for the unexpired portion of the term of his predecessor in office. Any vacancy created by an increase in the number of directorships shall be filled for the unexpired term by action of shareholders. Any other vacancy may be filled for the unexpired term by action of the sole remaining director in office or by unanimous written consent of all the directors without a meeting or at a meeting of the board of directors by the concurring vote of a majority of the remaining directors in office, though such remaining directors are less than a quorum, though the number of directors at the meeting is less than a quorum and though such majority is less than a quorum. A director elected to fill a newly created directorship shall serve until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualified. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of 5 incorporation or by these by -- laws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of Connecticut, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of Connecticut. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such 6 place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on three days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the certificate of incorporation. The act of a majority of the directors present at 7 any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the by-laws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of 8 directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the certificate of incorporation or these by-laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. 9 ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. 10 THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and 11 record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 12 THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. 13 Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the president or a vice-president and the secretary or an assistant secretary or the treasurer or an assistant treasurer of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full or summary statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and 14 preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers of the corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. 15 TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. CLOSING OF TRANSFER BOOKS Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, seventy days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days, immediately preceding such meeting. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than seventy days and, in case of a meeting of shareholders, not less than ten days prior 16 to the date on which the particular action requiring such determination of shareholders is to be taken. If the stock transfer books are not closed and no record date is fixed, the determination of shareholders entitled to notice of or to vote at a meeting, or to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the board of directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Connecticut. 17 LIST OF SHAREHOLDERS Section 7. The officer or agent having charge of the transfer books for shares shall make, at least five days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order, with the address of each and the number of shares held by each, which list, for a period of five days prior to such meeting, shall be kept on file at the principal office of the corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original share ledger or transfer book, or a duplicate thereof, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book or to vote at any meeting of the shareholders. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the certificate of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, 18 in property or in shares of the capital stock, subject to any provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Connecticut". The 19 seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted (a) at any regular or special meeting of shareholders at which a quorum is present or represented, by the affirmative vote of a majority of the stock entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting, or (b) by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board. 20 STATEMENT OF INCORPORATORS IN LIEU OF ORGANIZATION MEETING OF OGDEN MARTIN SYSTEMS OF BRISTOL, INC. * * * * * The Certificate of Incorporation of this corporation having been filed in the office of the Secretary of State, the undersigned, being all of the incorporators named in said certificate, do hereby state that the following actions were taken on this day for the purpose of organizing this corporation: 1. By-laws for the regulation of the affairs of the corporation were adopted by the undersigned incorporators and were ordered inserted in the minute book immediately following the copy of the Certificate of Incorporation and before this instrument. 2. The following persons were elected as directors to hold office until the first annual meeting of stockholders or until their respective successors are elected and qualified: DONALD A. KRENZ, PETER THORNER, WILLIAM F. CONNELL and SALVATORE S. FERRARA. 3. The Board of Directors was authorized, in its discretion, to issue the shares of the capital stock of this corpo- ration to the full amount or number of shares authorized by the Certificate of Incorporation, in such amounts and for such considerations as from time to time shall be determined by the Board of Directors and as may be permitted by law. Dated, March 13, 1985. /s/ Todd A. Rudner ---------------------------------------- Todd A. Rudner, Incorporator /s/ Peter C. Farley ---------------------------------------- Peter C. Farley, Incorporator /s/ Ellen S. Estes ---------------------------------------- Ellen S. Estes, Incorporator 2 By-Laws Amendment Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further 2 RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibits A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. Richard Ablon /s/ Scott G. Mackin - ------------------------- ---------------------------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ Bruce W. Stone ----------------------- BRUCE W. STONE 3 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. EX-99.T3B82 160 exhibit_t3b-82.txt Exhibit T3B-82 Ogden Martin Systems of Fairfax, Inc. * * * * * BYLAWS * * * * * ARTICLE I OFFICES Section 1. The registered office shall be located in Richmond, Virginia. Section 2. The corporation may also have offices at such other places both within and without the State of Virginia as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on such date and at such time as may be determined by the board of directors, if not a legal holiday, and if a legal holiday, then on the next secular day following, at which they shall elect by a plurality vote, a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice of the annual meeting stating the date, time and place of the meeting shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the president, the secretary, or the officer or persons calling the meeting to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Virginia as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the chairman of the board of directors, the president, or the board of directors. 2 Section 3. Written or printed notice of a special meeting stating the date, time and place of the meeting and the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than sixty days before the date of the meeting, either personally or by mail, by or at the direction of the president, the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. Notice of a shareholders' meeting to act on an amendment of the articles of incorporation, on a plan of merger or share exchange, on a proposed sale of assets other than in the regular course of business, or on a plan of dissolution shall be given, in the manner provided herein, not less than twenty-five nor more than sixty days before the date of the meeting. Any such notice shall be accompanied by a copy of the proposed amendment, plan of merger, or share exchange, or plan of proposed sale of assets. Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. 3 ARTICLE IV QUORUM AND VOTING OF SHARES Section 1. A majority of the votes entitled to be cast on a matter by the voting group constitutes a quorum of that voting group for action on that matter except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, action on a matter by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action unless the vote of a greater number of affirmative votes is required by law or the articles of incorporation. Section 3. Each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders unless the articles of incorporation or law provides otherwise. A shareholder may vote 4 either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Section 4. Any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE V DIRECTORS Section 1. The number of directors shall be not less than three nor more than five. The number of directors may be fixed or changed within the minimum or maximum by the shareholders or by the board of directors, unless shares have been issued in which case only the shareholders may change the range or switch to a fixed size board. Directors need not be residents of the State of Virginia nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors 5 shall hold office until the first annual meeting of shareholders. Section 2. Any vacancy occurring in the board of directors, including a vacancy resulting from an increase in the number of directors, may be filled by the shareholders, the board of directors, or if the directors remaining in office constitute fewer than a quorum of the board, the vacancy may be filled by the affirmative vote of the directors remaining in office. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these bylaws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of Virginia, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all 6 directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of Virginia. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special 7 meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the articles of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the articles of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. 8 Section 7. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if one or more consents in writing, setting forth the action so taken, shall be signed by each director entitled to vote with respect to the subject matter thereof and included in the minutes or filed with the corporate records reflecting the action taken. ARTICLE VII COMMITTEES OF DIRECTORS Section 1. A majority of the number of directors fixed by the bylaws or otherwise, may create one or more committees and appoint members of the board to serve on the committee or committees. To the extent provided by the board of directors or articles of incorporation, each committee shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Each committee shall have two or more members who serve at the pleasure of the board of directors. Each committee shall keep regular minutes of its proceedings and report the same to the board when required. 9 ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of incorporation or of these bylaws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the articles of incorporation or these bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. 10 ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president and one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the 11 board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such 12 other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined 13 by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such 14 surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates or shall be uncertificated. Certificates shall be signed by the president or a vice-president and the secretary or an assistant secretary of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. 15 In addition to the above officers the treasurer or an assistant treasurer may sign in lieu of the secretary or an assistant secretary. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of each certificate, or each certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue different series within a class, the variations in the relative rights and preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is 16 issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or uncertificated security to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate or uncertificated security, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. 17 CLOSING OF TRANSFER BOOKS Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or any adjournment thereof or entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of directors may fix in advance a date as the record date for the determination of shareholders, such date in any case to be not more than seventy days. If no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the board of directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its 18 books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Virginia. LIST OF SHAREHOLDERS Section 7. The officer or agent having charge of the transfer books for shares shall make, at least ten days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, arranged by voting group and within each voting group by class or series of shares, with the address of each and the number of shares held by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the principal business office of the corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original share transfer book, or a duplicate thereof, shall be prima 19 facie evidence as to who are the shareholders entitled to examine such list or share transfer book or to vote at any meeting of the shareholders. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the articles of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in money or other property subject to any provisions of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 20 CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Virginia". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These bylaws may be amended or repealed or new bylaws may be adopted by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board unless the articles of incorporation or law reserve this power to the shareholders. 21 22 BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the-by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further -1- RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so- that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating -2- officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia N. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. Richard Ablon /s/ Scott G. Mackin - ----------------------------- -------------------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ Bruce W. Stone ----------------------------- BRUCE W. STONE -3- EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. EX-99.T3B83 161 exhibit_t3b-83.txt EXHIBIT T3B-83 OGDEN MARTIN SYSTEMS OF HAVERHILL, INC. * * * * * B Y - L A W S * * * * * ARTICLE I OFFICES Section 1. The principal office shall be located in Boston, Massachusetts, Section 2. The corporation may also have offices at such other places both within and without the Commonwealth of Massachusetts as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF STOCKHOLDERS Section 1. All meetings of stockholders for the election of directors shall be held at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of stockholders shall be held on such date and at such time as may be determined by the board of directors, if not a legal holiday, and if a legal holiday, then on the next secular day following, at which they ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the articles of organization. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the stockholders unless the vote of a greater number of shares of stock is required by law or the articles of organization. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders. A stockholder may vote either in person or by proxy executed in writing by the stockholder or by his duly authorized attorney-in-fact. Section 4. Any action required to be taken at a meeting of the stockholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the stockholders entitled to vote with respect to the subject matter thereof. ARTICLE V DIRECTORS Section 1. The number of directors shall be three. Directors need not be residents of the Commonwealth of Massachusetts nor stockholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the stockholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the number of directors may be filled by a majority of the directors then in office, though less than a quorum, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of organization or by these by-laws directed or required to be exercised or done by the stockholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the Commonwealth of Massachusetts, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the Commonwealth of Massachusetts. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the articles of organization. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the articles of organization. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the by -- laws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of organization or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the articles of organization or these by -- laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The initial officers shall be elected by the incorporators and are set forth in the articles of organization. The officers of the corporation shall be a president, a treasurer and a clerk. The president shall be chosen by the board of directors. The treasurer and the clerk shall be elected by the shareholders. The board of directors may choose one or more vice - -- presidents and one or more assistant treasurers and assistant clerks. None of the officers need be members of the board nor stockholders of the corporation. Section 2. The board of directors at its first meeting after each annual meeting of stockholders shall choose the officers for the ensuing year. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE-PRESIDENTS Section 8. The vice -- president, or if there shall be more than one, the vice -- presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE CLERK AND ASSISTANT CLERKS Section 9. The clerk shall be a resident of the Commonwealth of Massachusetts, provided however, he need not be such resident, if, and as long as, the corporation shall appoint and maintain a resident agent for service of process within the Commonwealth. The clerk shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the record books and of the corporate seal of the corporation and he, or an assistant clerk, shall have authority to affix the seal to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant clerk. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. The office of the clerk shall be deemed to be the office of the secretary of the corporation whenever such office is required for any purpose; and, whenever the signature of the secretary of the corporation is required on any instrument, or document, by the laws of the United States, or of any other state, or in any other manner whatsoever, the clerk shall have authority to affix his signature in such capacity. Section 10. The assistant clerk, or if there be more than one, the assistant clerks in the order determined by the board of directors, shall, in the absence or disability of the clerk, perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the president or a vice-president and the treasurer or an assistant treasurer of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any stockholder upon request and without charge, a full statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and preferences between the shares of each such series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Any shares subject to any restriction on transfer shall have the restriction noted conspicuously on the certificate and shall also set forth on the face or back of the certificate either the full text of the restriction, or a statement of the existence of such restriction and a statement that the corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. Section 2. The signatures of the officers upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. FIXING OF RECORD DATE Section 5. The board of directors may fix in advance a time which shall be not more than sixty days before the date of any meeting of stockholders or the date for the payment of any dividend or the making of any distribution to stockholders or the last day on which the consent or dissent of stockholders may be effectively expressed for any purpose, as the record date for determining the stockholders having the right to notice of and to vote at such meeting and any adjournment thereof or the right to receive such dividend or distribution or the right to give such consent or dissent, and in such case only stockholders of record on such record date shall have such right, notwithstanding any transfer of stock on the books of the corporation after the record date; or without fixing such record date the board of directors may for any of such purposes close the transfer books for all or any part of such period. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Massachusetts. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the articles of organization relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to any provisions of the articles of organization. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Massachusetts". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by -- laws may be adopted (a) at any regular or special meeting of stockholders at which a quorum is present or represented, by the affirmative vote of a majority of the stock entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting, or (b) by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board, except with respect to any provision which by law, the articles of organization or the by-laws requires action by the stockholders, and provided further that any by -- law adopted by the directors may be amended or repealed by the stockholders. BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990 The undersigned, constituting the holder of all the outstanding shares of the corporations listed on Exhibits A, B, and C attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of the corporation listed on Exhibit A hereto be amended to change the number of directors of such corporation to "not less than three nor more than five"; and it is further RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit B hereto be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of each of the corporations listed on Exhibit C hereto to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott C. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS, INC. By: /s/ Scott G. Mackin --------------------------------- Scott G. Mackin First Executive Vice President EXHIBIT A Ogden Martin Systems of Indianapolis, Inc. EXHIBIT B Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntsville, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C Ogden Marion Land Corp. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Indianapolis, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Martin Systems of Union, Inc. BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and -1- Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further -2- RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co -- Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. Richard Ablon /s/ Scott G. Mackin - ------------------------- ------------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ Bruce W. Stone ---------------------- BRUCE W. STONE -3- EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. EX-99.T3B84 162 exhibit_t3b-84.txt Exhibit T3B-84 AGREEMENT OF HONOLULU RESOURCE RECOVERY VENTURE THIS AGREEMENT, effective as of the 1st day of November, 1983, by and between COMBUSTION ENGINEERING HAWAII, INC. (hereinafter "CEHI"), a Hawaii corporation having its principal office at 700 Bishop Street, Honolulu, Hawaii 96813, and OAHU WASTE ENERGY RECOVERY, INC. (hereinafter "OWER"), a California corporation with its principal office at 700 Bishop Street, Honolulu, Hawaii 96813. W I T N E S S E T H: WHEREAS, the City and County of Honolulu (hereinafter the "City"), desires to have established a facility to receive municipal solid waste and process it by converting it to electrical energy and residue (hereinafter referred to as the "Facility"); and WHEREAS, the City issued a "Request for Proposal for the Financing, Design, Construction, Shakedown and Operation/Maintenance of a Solid Waste Processing and Resource Recovery Facility for the City and County of Honolulu," dated August 30, 1982, as amended and restated from time to time (hereinafter referred to as the "RFP"); and WHEREAS, CEHI (and/or its Affiliates) is a corporation engaged in the business of design, construction and operation of solid waste processing and resource recovery facilities; and WHEREAS, OWER (and/or its Affiliates) is in the business of operating and maintaining facilities similar to the Facility; and WHEREAS, CEHI and OWER (and/or their Affiliates) in response to the RFP jointly submitted to the City a proposal to design, construct, shakedown, test, operate and maintain the Facility ("Proposal") and desire to establish a general partnership under this agreement (hereinafter "Agreement") to execute and perform a contract or series of related contracts for the -1- design, construction, shakedown, testing, operation and maintenance of the Facility in accordance with the Proposal; and WHEREAS, CEHI and OWER (hereinafter referred to as the "Partners") desire to define their respective areas of responsibility with respect to the Facility and their rights and obligations with respect to each other; NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, the parties hereto hereby agree as follows: ARTICLE I. NAME AND PLACE OF BUSINESS 1.1 Name. The partnership shall operate under the name of the Honolulu Resource Recovery Venture (hereinafter referred to as the "Partnership"). 1.2 Location. The principal place of business shall be at 700 Bishop Street, Honolulu, Hawaii 96813, with such other places of business as may be agreed upon by the Partners. 1.3 Other Activities. Nothing contained herein shall be deemed to restrict in any way the freedom of either party or its Affiliates to conduct any business or activity whatsoever for its own account excepting only such business or activity which may conflict with or materially impair the ability of a Partner to perform its obligations assumed under this Agreement, the Construction Contract and/or the Disposal Services Contract. ARTICLE II. PURPOSE OF BUSINESS 2.1 Purpose. The purpose of the Partnership shall be to design, construct, shakedown, test, operate and maintain the Facility. Unless otherwise directed by the Executive Committee (as -2- hereinafter defined), CEHI will design, construct, shakedown and test the Facility during the Construction Phase and OWER will operate and maintain the Facility during the Operating Phase. 2.2 Registration. The Partners have signed and caused to be filed with the Department of Commerce and Consumer Affairs, State of Hawaii, a general partnership registration statement. ARTICLE III. DEFINITIONS 3.1 "Affiliate" shall mean any corporation, partnership or other business entity (other than the Partnership formed hereunder) which controls, is controlled by or is under common control with CEHI or OWER, as the case may be. 3.2 "Construction Contract" shall mean the contract between the City and the Partnership for the design, construction and testing of the Facility, dated as of July 3, 1985 and amended on July 19, 1985, and as may be further amended from time to time. 3.3 "Construction Guaranty Agreement" shall mean the performance guaranty agreement executed by the ultimate parent corporation of each Partner, individually, for construction of the Facility. 3.4 "Disposal Services Contract" shall mean the contract between the City and the Partnership for the provision of waste processing and disposal services, including operation and maintenance of the Facility, dated as of July 3, 1985 and amended on July 19, 1985, and as may be further amended from time to time. -3- 3.5 "Energy Product Revenues" and "Recovered Material Revenues" shall mean those Energy Product Revenues and Recovered Material Revenues as defined respectively in the Disposal Services Contract. 3.6 "Facility" shall mean a facility to receive municipal solid waste and process it by converting it to electrical energy, ash and residue, and built in accordance with the Construction Contract and Related Documents. 3.7 "Guaranteed Expenses" and "Reimbursable Expenses" shall mean those Guaranteed Waste Processing and Disposal Expenses and Reimbursable Expenses as defined respectively in the Disposal Services Contract. 3.8 "Operating Guaranty Agreement" shall mean the performance guaranty agreement executed by the ultimate parent corporation of each Partner, individually, for operation of the Facility. 3.9 "Power Purchase Contract" shall mean the contract for the sale of electrical energy produced by the Facility to the Hawaiian Electric Company, Inc. (hereinafter "HECO"). 3.10 "Proposal" shall mean the final Pricing Proposal submitted by CEHI and OWER on July 3, 1985, as amended, in response to the RFP. 3.11 "Related Documents" shall mean any and all documents other than the Construction Contract, the Disposal Services Contract and the Power Purchase Contract which are contemplated by the Proposal and are customary and necessary to put into effect and carry on the business deal and financing structure described in the Proposal. 3.12 The terms herein defined shall have the meanings specified in this Article III for the purposes of this Agreement. Any term used in this Agreement which is not defined herein shall have the meaning defined in the applicable Construction Contract or Disposal Services -4- Contract. Any term used herein which is not defined in either this Agreement or in the Construction Contract or Disposal Services Contract shall have the meaning normally ascribed to it in the context of agreements such as this Agreement. ARTICLE IV. TERM 4.1 Term. The Partnership shall commence on November 1, 1983, and shall continue until terminated or dissolved by the occurrence of one of the events listed in Section 9.1 below. The Partners shall extend the term of this Partnership Agreement on a month-to-month basis, as necessary, for purposes of winding up the Partnership affairs. ARTICLE V. CAPITAL 5.1 Capital Contributions. The initial capital shall be the total sum of $20,000, to be contributed by the Partners in equal shares. 5.2 Additional Capital Contributions. In the event additional capital contributions of any kind are required, from time to time, the Partners will, at the time the need for additional capital occurs, proportionately contribute such capital in the same manner set forth in Section 7.9 below. In the event any Partner shall fail to contribute additional capital within the time limits as the Executive Committee (as defined hereinbelow) shall specify, then the other Partner may contribute the required capital for such Partner and if it so elects to contribute, the Partner so contributing shall be first repaid from any funds otherwise payable to the non-contributing Partner together with interest thereon at the rate of two percent (2%) above the prime lending -5- rate quoted to substantial and commercial borrowers on ninety-day loans at the City Bank of New York, each day such interest accrues. 5.3 Working Capital. The Partners acknowledge the need for working capital for ongoing business operations of the Partnership. Said need and actual amounts required shall be determined by the Executive Committee in accordance with this Article V. ARTICLE VI. CAPITAL ACCOUNTS 6.1 Capital Accounts. An individual capital account shall be maintained for each Partner for purposes of this Agreement and in accordance with generally accepted accounting principles. 6.2 Interest. No interest shall be paid to any Partner on its original capital, its additional capital, or on a credit balance in its account. ARTICLE VII. ADMINISTRATIVE PROVISIONS 7.1 Management of Partnership. The overall management and control of the business and affairs of the Partnership shall be vested in a two person Executive Committee consisting of one representative from CEHI and one representative from OWER, to be designated from time to time in writing by each of the Partners (hereafter called "Representative"). Each Partner may have more than one person present at the Executive Committee meeting as a non-voting participant. Either Partner may replace its Representative, or designate an alternate for any particular meeting, at any time upon written notice to the other Partner. Each Representative shall have 50% of the voting power. -6- (a) The Executive Committee shall designate one of its members to be chairman of the Committee, with said chairmanship to be alternated annually between Representatives of the Partners. The business and affairs of the Partnership shall be managed by the Executive Committee in accordance with the powers and limitations set forth in this Agreement. (b) Meetings of the Executive Committee may be called by either Representative. Unless otherwise agreed upon by the Representatives, all meetings shall be either held in Honolulu, Hawaii at OWER's office located at 700 Bishop Street, or held via teleconferencing calls between Representatives. (c) Notice of time, date and place of meetings and business to be transacted shall be given to the other Representative at least seven (7) days prior thereto by written notice delivered personally or by certified or registered mail, with return receipt requested, to the Representative at his business address, or by telegram. If mailed as provided herein, such notice shall be deemed to be delivered on the date of delivery as indicated by the U.S. Postal Service on the return receipt requested. If notice is to be given by telegram, such notice shall be deemed to be delivered when confirmation of the telegram is delivered to the sender thereof. Whenever any notice is required to be given to a Representative, a waiver thereof in writing, signed at any time (whether before or after the time of meeting) by the Representative entitled to such notice, shall be deemed equivalent to the giving of such notice. The attendance of a Representative at a meeting shall constitute a waiver of notice of such meeting, except where the Representative attends a meeting and objects to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted nor the purpose of -7- any meeting of the Executive Committee shall be limited to that specified in the notice or waiver of notice of such meeting. (d) Representation of a Representative from each Partner shall constitute a quorum for the transaction of all business at any meeting of the Executive Committee which has been duly noticed. The act of 100% of the voting power present shall be the act of the Executive Committee. (e) Any action required or permitted by this Agreement to be taken by the Executive Committee at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by both Representatives. (f) The Chairman, or a person designated by him, shall keep the minutes of all meetings of the Executive Committee in one or more books provided for that purpose. The Chairman shall submit a written copy of the minutes of each meeting to the other Representative within fifteen (15) days from the date of each meeting. Said minutes shall become final thirty (30) days following distribution thereof to the Representatives, unless within said 30 day period a Representative shall notify the other Representative in writing of any errors or omissions in respect thereto. (g) The Executive Committee shall from time to time adopt all reasonable and necessary rules and regulations for the operation of the Partnership, providing such are not in conflict with this Agreement. 7.2 Accounting Method and Decisions. The Partnership shall keep its accounting records and shall report its income for income tax purposes on the accrual method of accounting. As to all matters of accounting not provided for in this Agreement, generally accepted accounting principles shall govern. The books shall be kept on a calendar year basis and shall be -8- closed and balanced at the end of each year. The Partners agree to treat income and expenses for federal and state income tax reporting purposes in the manner most beneficial to the Partnership under applicable law. 7.3 Maintenance of Books and Records. The Executive Committee shall maintain, or cause to be maintained, the books and records of the Partnership and may employ or retain, on behalf and at the expense of the Partnership, such employees and accountants as in its reasonable discretion it deems necessary or proper in connection therewith. In addition, the Executive Committee shall maintain all other records necessary, convenient or incidental to recording the Partnership's business and affairs and sufficient to record the allocation of profits or losses as provided for herein, and shall prepare and file all tax returns and payroll reports that are required to be filed by the Partnership, and shall furnish, execute and permanently maintain all other data, forms and records as required by any governmental unit or agency. Such books and records shall at all times be open to the reasonable inspection, duplication and examination by the Partners or their duly authorized agents or Representatives. 7.4 Reports. Promptly after the end of each accounting period (which period shall be a calendar month unless otherwise designated by the Executive Committee), the Executive Committee shall direct that statements showing the results of operation during such accounting period and the financial position of the Partnership as of the end of such accounting period be prepared and delivered to each Partner. Similar statements shall be prepared and delivered to each Partner within forty-five (45) days after the end of each calendar year, showing the results of operations for the year and the financial position of the Partnership as of the end of such year. The Partnership shall have an audit of its books made after the close of each year by a certified public accountant mutually agreed to by the Partners, unless the Executive Committee agrees -9- unanimously to forego or otherwise delay said audit. Said audit shall be made as soon as reasonably practicable after the close of each year, but in no event later than the end of the first calendar quarter. Each Partner shall be furnished with copies of the Partnership's financial statements and audit report covering the results of such audit. 7.5 Budget Estimates, Review and Approval. (a) Annual Meeting: Review and Approval of Proposed Program and Budget. The Representatives shall hold an annual Meeting in Honolulu each calendar year on the first Thursday of November. The Executive Committee shall meet in accordance with this subparagraph (a) to consider and, if appropriate, approve, with or without amendment, a proposed annual budget for partnership operations and a capital program, if any, and as appropriate, an annual budget for operation and maintenance of the Facility under the Disposal Services Contract for the immediately following calendar year. Each such proposed program and budget shall be prepared by the appropriate Partner and furnished to each Representative by the Chairman at least 30 days prior to each such meeting. Each such proposed budget shall include separate budgets for capital expenditures and for non-capital expenditures and shall contain an estimate of working capital requirements during the applicable calendar year. Any program and budget may from time to time be revised and amended by the Executive Committee at a meeting held in accordance with this Article VII. The Executive Committee shall limit expenditures to those specified in the programs and budgets as approved and revised in accordance with this Section 7.5. (b) Approved Budget. The Chairman shall, as soon as practicable, but no later than thirty (30) days following the annual meeting, prepare and furnish to each Representative a copy of the budget as shall have been approved by the Representatives at the -10- annual meeting showing for the coming year and each calendar month thereof (a) budgeted expenditures for items to be capitalized or deferred and for items of expense, (b) projected receipts, (c) amounts needed for additions to working capital and for capital assets, (d) items for operation and maintenance of the Facility, if applicable, and (e) amounts expected to be available for distribution pursuant to Article VIII. The budget approved at the initial meeting of the Executive Committee for the first calendar year or other designated accounting period following execution of this Agreement shall be furnished to the Representatives within thirty (30) days after such initial meeting, unless otherwise agreed to by the Representatives. (c) Monthly Estimates and Borrowing. Based on the approved budget (which may be amended and/or revised by the Representatives from time to time as the circumstances may require) the Chairman, on or before the fifth day of each month, will submit to each Representative a current cash estimate showing (i) the estimated cash disbursement which the Partnership will be required to make during such calendar month for items to be capitalized or deferred or expensed (specifying separately the estimated disbursements for partnership operations, applicable construction or operation/maintenance of Facility activities, and other items to be capitalized or deferred) and all other expense items; (ii) estimated receipts; (iii) amounts needed for additions to working capital; and (iv) the amount, if any, by which estimated expenditures and required additions to working capital exceed estimated receipts. (d) Construction Phase Budget. The final Construction Phase budget shall be the budget used by the Partners in preparation of the Proposal and shall not be altered or amended except by prior approval of the Executive Committee. -11- 7.6 Bank Accounts. All receipts of the Partnership shall be deposited in such bank(s) as selected by the Executive Committee. Withdrawals from said accounts shall be made by signatures only of such person or persons as shall be authorized by the Executive Committee. 7.7 Restrictions on Partners. Except as provided herein for the powers and authority of each Partner, no Partner shall, without the written consent of the Executive Committee: (a) Borrow or lend money on behalf of the Partnership; (b) Execute any mortgage, bond, lease or contract on behalf of the Partnership; (c) Encumber any Partnership assets; (d) Assign, transfer or pledge any debts due the Partnership or release any debts due except on payment in full; and/or (e) Compromise any claim due to the Partnership or submit to arbitration any dispute or controversy wherein the Partnership is principal in or to the dispute or controversy. 7.8 Compensation for Partner Services. Except as otherwise expressly provided herein or in the approved project budgets, neither Partner shall be entitled to be reimbursed by the other or the Partnership for its own cost related to its separate activities under this Agreement, including, but not limited to, costs incurred by it in preparing its portion of the Proposal and salaries and expenses of its officers and employees. Further, it is the intention of the Partners that their interests in the net profits of the Partnership shall adequately compensate them for any services rendered to the Partnership in connection with the day to day management and conduct of the Partnership business and, accordingly, except as otherwise expressly provided herein, neither Partner shall be entitled to receive any compensation for said services. In performing services (other than those specifically provided for in this Section 7.8) required by -12- the Partnership, either Partner, with the consent of the other, may engage outside professional services as may be reasonably necessary, and the fees for such services shall be deemed expenses of the Partnership. 7.9 Disbursements for Goods and Services. 7.9.1 Disbursements for goods and services shall be shared by the Partners as follows: (a) disbursements incurred for the joint and mutual benefit of the Partnership in performing this Agreement, to the extent those goods or services are not related to and properly a part of performance of the applicable Construction and/or Disposal Services Contracts with the City shall be shared equally by the Partners; and (b) disbursements incurred that are attributable to either the Construction Contract and/or the Disposal Services Contract shall be determined as follows: (i) disbursements incurred during the Construction Phase and/or attributable to the Construction Contract shall be borne 100% by CEHI, but only after any and all Construction Phase related revenues (which includes profit margins but excludes reimbursements for goods and services provided to the Partnership by either Partner or their Affiliates) have been expended for such disbursements; (ii) disbursements incurred that are attributable to the make-up of any shortfalls of Energy Product and Recovered Material Revenues to the City, as a result of the Facility being accepted by the City at a level -13- less than that necessary for the Facility to meet 100% of the guarantees set forth in the Construction Guaranty Agreement, shall be borne 100% by CEHI, but only after any and all Construction Phase related revenues (which includes profit margins but excludes reimbursements for goods and services provided to the Partnership by either Partner or their Affiliates) have been expended for such disbursements; and (iii) disbursements incurred during the Operating Phase that are attributable to the Disposal Services Contract shall be paid from amounts received pursuant to the Disposal Service Contract to reimburse these expenses under said Contract. Differences between disbursements incurred and amounts received pursuant to the Disposal Services Contract as reimbursements shall be shared in accordance with subsections 8.3.2 and 8.3.3 below. (c) disbursements required for facility improvement projects not provided for in the Construction Contract and/or the Disposal Services Contract shall be determined by good faith negotiation between the Partners based upon the expected or anticipated benefit of said disbursement. 7.9.2 In the event either Partner, with the prior approval of the Executive Committee, procures goods or services on behalf of the Partnership and pays to the supplier the entire cost thereof, the Partner shall be reimbursed by the Partnership in accordance with subsection 7.9.1 from funds available for such purposes in Partnership Accounts. 7.9.3 The Partners shall, in the performance of their duties under the Construction and Disposal Services Contracts, exercise sound business judgment. In the event of -14- Facility maintenance, repair and procurement of parts, the Partners shall endeavor to procure same from either CEHI or OWER, or their Affiliates, provided such procurement is commercially reasonable and in the best interests of the Partnership. In the event the Partnership procures a repair service or parts from a Partner (or its Affiliate) for an unscheduled and unexpected event with the Facility, the providing Partner (or its Affiliate) shall be reimbursed only its costs and no profit on said repair service or procurement of parts. 7.10 Employment of Affiliates. The Partnership shall not enter into any agreement or arrangement for the furnishing to or the procurement by the Partnership of a material amount of goods or services of any kind or description from any Partner or any of its Affiliates, unless any such agreement or arrangement has been approved by the Executive Committee after the full disclosure of the relationship and other relevant facts relating to such agreement or arrangement. / / / / / / / / / / / / -15- ARTICLE VIII. ALLOCATION OF PROFITS AND LOSSES AND DISTRIBUTIONS TO PARTNERS 8.1 Allocation to Profits During Construction Phase. During the period in which the Construction Contract is in effect and prior to successful completion of the testing and acceptance of the Facility (the "Construction Phase"), and subject to Section 8.7 below, the profits ultimately to be allocated at completion of construction shall be net of any costs not included on a line item basis in the final Construction Phase budget (as defined in Section 7.5(d) above) but required under the Construction Contract, and shall be allocated to the Partners in the following manner and order: (a) The first $2 million of profit from any source shall be shared equally; (b) Of the next $15.154 million increment of profit from any source, OWER shall be entitled to receive 10% and CEHI 90%; (c) Of the next $3.549 million increment of profit from any source, OWER shall be entitled to receive 20% and CEHI 80%; (d) Of the next $3.390 million increment of profit from any source, OWER shall be entitled to receive 50% and CEHI 50%; (e) Of the next $3.783 million increment of profit from any source, OWER shall be entitled to receive 70% and CEHI 30%; and (f) Any amount of profit that is greater than $27.876 million shall be shared as follows: (i) if the source of profit is from construction (including interest), then OWER shall receive 10% and CEHI 90%; -16- (ii) if the source of profit is from testing and startup processing, then OWER shall receive 50% and CEHI 50%. For the purpose of determining the source of profit under subparagraph (f) hereinabove, the final construction phase budget referred to in Section 7.5(d) above will be used as a basis of comparison to the actual results in order to determine any variances and the source(s) of the profits in excess of $27.876 million, if any. For illustration purposes, the following two examples shall apply: ($ millions)
(i) BUDGET ACTUAL VARIANCE ------ ------ -------- Construction 20.703 21.703 1.000 Testing 7.173 9.173 2.000 ----- Excess 3.000
Conclusion: CEHI would receive 90% of the $1.0 million excess from construction and 50% of the $2.0 million excess from testing. OWER would receive 10% of the $1.0 million excess and 50% of the $2.0 million excess.
(ii) BUDGET ACTUAL VARIANCE ------ ------ -------- Construction 20.703 18.703 <2.000> Testing 7.173 10.173 3.000 ----- Excess $1.000
Conclusion: CEHI and OWER would each receive 50% of the $1.0 million excess. 8.2 Allocation of Liability during Construction Phase. 8.2.1 During the Construction Phase only, CEHI shall assume and be responsible for 100% of all liability of the Partnership to the City and the adverse economic -17- consequences, if any, to the Partnership caused by and to the extent of CEHI's failure to satisfy the Partnership's obligations to the City under the Construction Contract and/or the Construction Guaranty Agreement. However, to cover the costs and expenses incurred with meeting these responsibilities, CEHI shall have available to it any and all funds received by the Partnership at any time pursuant to the Construction Contract including, but not limited to, funds from the City, insurance proceeds (remaining after payments are made to anyone for costs legitimately incurred as a direct result of the event or events or circumstances giving rise to the insurance proceeds), interest income, subcontractor penalties and start-up operational revenues. Said assumption of risk of adverse economic consequences to the Partnership by CEHI shall not be construed as a guarantee of any profit or level of profit and/or any revenue or level of revenue of any kind at any time during the Construction and/or the Operating Phase to the Partnership or to any Partner. Liability and adverse economic consequences include, but are not limited to, events arising from or in connection with Project costs and expenses guaranteed by the Partnership, timely completion of construction of the Facility, and the ability or inability of the Facility to meet 100% of the guarantees set forth in the Construction Guaranty Agreement to the City. 8.2.2 For purposes of this Agreement, CEHI shall provide the warranty set forth in Exhibit A, attached hereto and made a part hereof. It is agreed and acknowledged by the Partners that, as between them for the purpose of allocation of losses as set forth herein, the warranty set forth in Exhibit A shall be deemed to be the sole and exclusive warranty by CEHI with respect to the Facility equipment and shall be no more than the warranty given by the Partnership to the City. 8.3 Allocation of Profits and Losses During Operating Phase. To determine each Partner's share of profits or losses during the period in which the Disposal Services Contract is in -18- effect (the "Operating Phase"), and subject to the obligations assumed by CEHI under Section 8.2.1 above, all revenues, reimbursable expenses, guaranteed expenses and cost of operations shall be allocated to the Partners in the following order and manner: 8.3.1 General Revenues Allocation. That portion of Energy Product Revenues and Recovered Materials Revenues credited to the Partnership, plus income from interest and other undefined sources, (hereinafter collectively referred to as "General Revenues") shall be allocated as follows: (a) Thirty percent (30%) to CEHI, and (b) Seventy percent (70%) to OWER. Forty percent (40%) of the General Revenues allocation for each year shall be deemed the "Buffer" for that year and shall be chargeable to OWER's seventy percent (70%) allocation aforementioned. 8.3.2 Allocation of Shortfall in the City's Guaranteed Revenues. If in the event the actual Energy Product Revenues and Recovered Material Revenues to the City are less than the revenues to the City that would have resulted from the guaranteed performance under the Operating Guaranty Agreement (hereinafter referred to as "Guaranteed Revenues"), for any reason or cause, thereby resulting in a shortfall to be paid by the Partnership to the City, the shortfall shall be settled in accordance with the Disposal Services Contract, and offset in the following priority until fully recovered: (a) First, against the Buffer for the current year; (b) Second, equally against the Partners' 30% allocations of the current year's General Revenues; -19- (c) Third, against the Buffer for the third year preceding the current year in which the shortfall was incurred, to the extent the Buffer for that year has not already been used to reduce any prior shortfalls; (d) Fourth, against the Buffer for the second year preceding the current year in which the shortfall was incurred, to the extent the Buffer for that year has not already been used to reduce any prior shortfalls; (e) Fifth, against the Buffer for the year preceding the current year in which the shortfall was incurred, to the extent the Buffer for that year has not already been used to reduce any prior shortfalls; and (f) Finally, any remaining shortfall shall be borne equally by the Partners. 8.3.3 Allocation of Operating Phase Expenses. (a) When the sum of the cash receipts to the Partnership to pay for the Guaranteed Expenses and Reimbursable Expenses, plus any other expense recoveries (e.g., insurance proceeds, recoveries from third parties, etc.), exceeds the total expenses and costs incurred or expended by the Partnership in discharging its obligations pursuant to the Disposal Services Contract, then such excess amount shall be allocated to the Partners in accordance with Section 8.3.1 above (but shall not be deemed a part of General Revenues). (b) When the total expenses and costs incurred or expended by the Partnership in discharging its obligations pursuant to the Disposal Services Contract are not fully recovered from payments to the Partnership to cover the sum of the Guaranteed Expenses and Reimbursable Expenses, or from any other expense recoveries, then such shortfall shall be allocated to the Partners in accordance with Section 8.3.2 above. -20- 8.4 Priority for Distribution of Cash Receipts. All cash receipts to the Partnership shall be used by the Partnership only for the following purposes and in the following order of priority: (a) To pay costs and expenses reasonably incurred in connection with maintaining and operating the Partnership, including the servicing of any loan made to or other debt incurred by the Partnership; (b) To maintain an adequate level of working capital for ongoing partnership operations; and (c) To create and retain reserves for future expenditures determined by the Executive Committee to be needed by the Partnership; (d) To distribute the allocation of profits to the Partners as set forth in Sections 8.1 and 8.3 hereinabove. 8.5 Determination of Distributions. The Partners may make distributions of cash and other Partnership assets from time to time as the Executive Committee shall determine after making such provisions for the payment of expenses and other obligations of the Partnership and establishing such reserves for the future operation of the Partnership business, all as set forth in Paragraph 8.4 above. If, at the time of distribution, the capital account of any Partner reflects a debit balance, said Partner's share of the distribution shall first be applied to satisfy said deficit. All cash distributions shall be made to the Partners in the same manner as the allocation of profits set forth in Sections 8.1 and 8.3 above. 8.6 Time of Distributions. Distributions, if any, to the Partners shall be authorized and approved by the Executive Committee and made at the following times: -21- (a) During the Construction Phase, as soon as practicable; however, any distributions, and recaptures of same, made during the Construction Phase shall be finally settled within thirty (30) days after the end of the applicable construction warranty period relating to the Facility. (b) During the Operating Phase, within thirty (30) days after each calendar month closing of the Partnership's books. 8.7 Recapture of Construction Distributions. Distributions, if any, made to the Partners as a result of the Construction Phase shall be subject to recapture by the Partnership to the extent said distributions are greater than the amounts actually due the Partners. At an appropriate time selected by the Executive Committee, the Construction Phase distributions actually due each Partner shall be recalculated in accordance with Sections 8.1 and 8.2 above to reflect the appropriate Partner distributions. In addition, if the Purchase Option set forth in Section 10.2(a) is exercised by an Option Partner, the distributions previously made to the Selling Partner shall be refunded to the Partnership at the time of closing of said sale of the Selling Partner's interest. ARTICLE IX. TERMINATION 9.1 Termination. This Agreement shall terminate and the Partners shall have no further obligations hereunder on the earlier of the date on which: (a) the Construction Contract is terminated prior to completion, and all rights and liabilities with respect to the City, the Partnership, the Partners and third parties nave been finally settled, adjusted, adjudicated or otherwise discharged; -22- (b) the Disposal Services Contract has been fully performed or terminated in accordance with its terms and conditions, full and complete payment has been made thereon and all rights and liabilities with respect to the City, the Partnership, the Partners and third parties have been finally settled, adjusted, adjudicated or otherwise discharged; (c) either Partner becomes the subject of dissolution, bankruptcy or insolvency proceedings, and said proceedings are not discharged within ninety (90) days; or (d) the Partners mutually agree to terminate. 9.2 Sale of Assets Upon Termination. All of the assets of the Partnership (other than cash) shall be sold or collected and turned into cash and deposited into an appropriate bank account of the Partnership within a period of one year from the date of any termination. Each Partner shall have the right to bid on and purchase any or all of the assets being sold. 9.3 Distribution on Termination. Upon sale or conversion into cash of the assets as hereinabove provided, a final audit shall be made and thereafter all cash and remaining assets of the Partnership shall be distributed in accordance with Section 11.1 below. ARTICLE X. TRANSFER OF INTEREST 10.1 Transfer of Interest in Partnership. Each Partner has the right to transfer or sell its interest in the Partnership without the prior consent of the other Partner. The right of transfer of interest herein shall not be exercised in such a manner which will materially jeopardize the Partners' interests under the Construction and Disposal Service Contracts with the City. Each Partner shall have the right of first refusal with respect to any proposed transfer or sale of the other Partner's interest to any person or entity, except that this right of first refusal shall not -23- apply with respect to a transfer or sale of a Partner's interest to an Affiliate of the Partner making such transfer or sale. 10.2 Purchase Option. In the event a Partner ("Selling Partner") desires to transfer or sell its Partnership interest, it shall give written notice and full financial and informational disclosure to the other Partner ("Option Partner") of the proposed transfer or sale. The Option Partner shall have the right, to be exercised within thirty (30) days of said written notice, to purchase the Selling Partner's interest at a purchase price established as follows: (a) If during the Construction Phase, at a fixed, nonrefundable purchase price of $1.5 million; (b) If during the Operating Phase: (1) within the first five years of operations, at a purchase price equal to $1.5 million or the total construction phase net distributions received by the Selling Partner pursuant to Article VIII, whichever is greater; (2) after the first five years of operations, at a purchase price equal to 20% of the net present value of the normalized annual revenue (hereinafter "NAR") for a period of years equal to the remaining term of the Disposal Services Contract, discounted at the Treasury note rate relating to said remaining term. The NAR shall be determined as follows: (i) Take the five years (60 months) preceding the date of the purchase and determine for the total Facility the annual, actual gross Energy Products Revenues and Recovered Materials Revenues, for purposes of this Section 10.2 hereinafter referred to as Combined Revenues ("CR"), for each of the five preceding years. -24- (ii) Eliminate the highest and lowest annual CR so determined, and calculate the average annual CR using the three remaining annual CR's. (iii) Determine the Partnership's share ("PS") of the average annual CR by multiplying the average annual CR by the percentage allocated to the Partnership under the Disposal Services Contract for each of the remaining years in the term of the Disposal Services Contract. (iv) The NAR shall be equal to the percentage of the PS allocated to the Selling Partner for each of the remaining years in the term of the Disposal Services Contract (i.e., 70% if Ower, 30% if CEHI). Whenever the average annual CR is to be established, the Partnership shall, at the direction of the Executive Committee, make whatever adjustments are equitable for the balance of the Disposal Services Contract's term to account for unusual events of a material significance. An event is unusual if it was not reasonably foreseeable, and is material if it will cause a variance in the Facility's annual revenues by +/-5% or more of the projected annual revenues. 10.3 Restriction on Option Party. For a period of three (3) years from the date of exercise of the Purchase Option, the Option Party shall be restricted from selling any portion of its Partnership interest to any potential purchaser disclosed by the Selling Partner pursuant to Section 10.2 above. 10.4 Assumption of Transferee. Any transferee or other person to whom an interest in the Partnership may be transferred shall automatically take such interest subject to all the terms and conditions of this Agreement, the Construction Contract, the Disposal Services Contract, the Construction Guaranty Agreement, the Operating Guaranty Agreement, the Power Purchase Contract, and any and all Related Documents. Specifically, the transferee or other person -25- acquiring an interest in the Partnership shall assume all guarantees made by the Selling Partner; provided, however, the obligations of the Selling Partner and/or its Affiliates under such guarantees shall not thereupon be released, except as to the Option Party if it exercises the Purchase Option. ARTICLE XI. DISSOLUTION 11.1 Winding Up the Partnership. Upon any voluntary dissolution, the Partnership shall immediately commence winding up its affairs. The Partners shall continue to share profits and losses during liquidation in the same proportions as before dissolution. The proceeds from liquidation of Partnership assets shall be applied in the following order: (a) Debts of the Partnership, other than to Partners; (b) Amounts owed to Partners for unpaid compensation and for contributions and interest on contributions made to the other Partner's capital account; (c) Amounts owed to Partners for the credit balances in their respective capital accounts; (d) The capital contributions of the Partners as reflected in their respective capital accounts; and (e) Any residual proceeds shall be shared equally by the Partners. 11.2 Balance Owed by a Partner. Should either Partner have a debit balance in its capital account, whether by reason of losses resulting from the liquidation of Partnership assets or otherwise, the debit balance shall represent an obligation from it to the Partnership and shall be paid in cash within 30 days after written demand by the Partnership. -26- ARTICLE XII. ARBITRATION 12.1 Arbitration. In the event of any disagreement between the Partners with respect to the provisions of this Agreement, or the rights or obligations of the Partners hereunder, which is not resolved between the Partners within 45 days after one Partner gives written notice of such dispute to the other, such disagreement shall be submitted to arbitration under Hawaii law. Any such arbitration shall be held in Honolulu, Hawaii and shall be determined by a single arbitrator, if the Partners are able to agree upon such an arbitrator, or by three impartial arbitrators, pursuant to Chapter 658, Hawaii Revised Statutes ("HRS"), as the same is in effect at the date hereof. One Partner to the disagreement may give to the other Partner written notice of a desire to have arbitration of the matter in disagreement and (unless the Partners have agreed upon a single arbitrator) name one of the arbitrators. Thereupon the other shall, within ten (10) days after receipt of such notice, name a second arbitrator and give notice of its selection to the Partner seeking arbitration and, in case of failure to do so, the Partner who has named an arbitrator shall have the right to apply to any judge of the Circuit Court of the First Circuit of the State of Hawaii (hereinafter, "the Judge") to appoint an arbitrator. The two arbitrators thus appointed (in either manner) shall within ten (10) days after the appointment of the second arbitrator select and appoint a third arbitrator and give notice thereof to the Partners. In the event that the two arbitrators so appointed fail, within the said ten (10) days fail to appoint the third arbitrator, either Partner may procure the appointment of a third arbitrator by the Judge. The three arbitrators so appointed shall thereupon proceed to determine the matter in dispute. The award of any two of them (including the disposition of the costs of arbitration as hereinafter provided) shall be final, conclusive and binding upon both Partners unless vacated, modified or corrected -27- as provided in HRS Chapter 658. In the event a written award is not delivered by the arbitrator(s) to either Partner, or their respective attorneys, as provided in HRS Chapter 658, within one hundred twenty (120) days of the appointment of the panel of arbitrators, either Partner may proceed to have the matter determined by the courts in an action for accounting or declaratory judgment, or other appropriate legal and equitable relief. Either Partner to the dispute may apply to the Circuit Court of the First Circuit of the State of Hawaii for an order confirming the award as provided in HRS Chapter 658. Upon the granting of an order confirming, modifying or correcting an award, judgment may be entered in conformity therewith by the said Court as provided in HRS Chapter 658. Unless otherwise specified by the arbitrator(s), each Partner to the dispute shall pay for the services of its own appointee or arbitrator otherwise appointed on its behalf, its own arbitration expenses, witness fees and attorneys' fees, and one-half of all other reasonable and necessary costs of such arbitration. 12.2 Notwithstanding anything to the contrary, in the event of a dispute the Partners shall carry on and proceed with their work and/or obligations of the Partnership pending resolution of the dispute, unless otherwise agreed to in writing by the Partners. ARTICLE XIII. INDEMNIFICATION 13.1 General Indemnity. Each Partner shall indemnify, defend and hold harmless the Partnership and the other Partner from and against any and all charges, expenses, claims and liabilities resulting from or arising out of any gross negligence or willful misconduct on the part of the indemnifying Partner, to the extent that the amount of any such charge, expense or liability exceeds or is not covered by the applicable insurance coverage required to be maintained by the Partnership; provided, however, that if the negligence or misconduct of the indemnifying Partner -28- is covered by applicable insurance coverage of the Partnership, the Partnership shall pay any charges, expenses or liabilities not paid by the insurance carrier solely as a result of such insurance carrier's deductible clause or provision contained in the applicable insurance policy (if the Partnership itself has sufficient funds to pay same). If the Partnership does not have sufficient funds to do so, then the indemnifying Partner shall be fully responsible therefor. ARTICLE XIV. WAIVER OF CONSEQUENTIAL AND OTHER DAMAGES In no event, whether as a result of or in connection with a breach of this Agreement, the Construction Contract, Disposal Services Contract, the Construction Guaranty Agreement, the Operating Guaranty Agreement, or the Power Purchase Contract, or tort (including but not limited to negligence), or any warranty, or liability without fault, or otherwise, shall either Partner or its Affiliates be liable to the other or its Affiliates for special, incidental, punitive or consequential damages, including without limitation, loss of profits or revenue, loss of use, losses by reason of Facility shutdown or service interruption. The foregoing notwithstanding, the waiver contained herein shall not apply to third party claims of whatever nature or kind, or to claims by a Partner (or its Affiliates) arising from or as a result of fraud or willful misconduct by the other Partner (or its Affiliates). ARTICLE XV. CONFIDENTIALITY 15.1 Confidence. The design, construction, shakedown, testing, operation and maintenance of the Facility shall be carried out in a spirit of mutual trust between the Partners. Any reasonable request made by one Partner to have a part of its work, services or documents -29- treated in a confidential manner with respect to third parties (other than Partners' Affiliates) shall be honored by the other Partner. 15.2 CEHI's Confidential Information. OWER acknowledges that CEHI has and will have valuable and confidential proprietary data and information with respect to the design and construction of a resource recovery facility, and that disclosure of any such data and information to OWER or its representatives is solely for the purpose of facilitating the transactions contemplated by this Agreement and is made solely on the terms and conditions set forth below. As used herein, the term "Confidential Information" means all data and information now or hereafter disclosed directly, in writing, by or on behalf of CEHI to OWER or to the Partnership and identified as Confidential Information by being clearly labelled as such. OWER shall: (a) Treat in strict confidence all Confidential Information and use such information only for the purposes contemplated by this Agreement and shall not exploit said information in any way whatsoever; (b) Limit access to Confidential Information to its employees, trade contractors, vendors and related entities who require such access for such purposes; (c) Not disclose, and use best efforts to insure that its employees, trade contractors, vendors and related entities not disclose, any Confidential Information to any third party except as hereinafter may be provided and, prior to any disclosure, require such employees, trade contractors, vendors and related entities to execute and deliver confidentiality agreements which shall be consistent with provisions of this Article; and (d) Not use Confidential Information except for performance of its obligations under the Construction and Disposal Services Contracts. -30- The following shall not be deemed to be Confidential Information: (a) Any part of the data or information which, prior to or at the time to CEHI supplies the same to OWER, is within public domain; (b) Any part of the data or information which may have been published publicly subsequent to CEHI's supplying the same to OWER, provided that any such publication was through no fault of OWER; (c) Any part of the data or information which was known by or in the possession of OWER or its employees prior to CEHI's supplying the same to OWER; (d) any part of the data or information that was contributed to the Partnership by OWER or its Affiliates; or (e) any part of the data or information that comprises a joint work product of the Partners, to which OWER has made a significant and material contribution of data or information. 15.3 Continuing Obligation. The obligations under this Article XV shall be continuing obligations which shall be observed by each Partner hereto notwithstanding that such Partner may have ceased to be a Partner. ARTICLE XVI. MISCELLANEOUS PROVISIONS 16.1 Entire Agreement. This Agreement contains the entire understanding of the Partners and supersedes any prior understandings and agreements between and among them respecting the within subject matter. There are no representations, agreements or understandings, oral or written, between the Partners hereto relating to the subject matter hereof which are not fully expressed herein. -31- 16.2 Condition Precedent. This Agreement shall not be effective unless and until Amfac, Inc. and Combustion Engineering, Inc. execute an Indemnity Agreement in substantially the form of the agreement attached hereto as Exhibit C. 16.3 Conversion to Mass Burning Facility. 16.3.1 Conversion Responsibility. In the event the Partnership is required, under either the Construction Contract or the Disposal Services Contract, to convert the Facility to a mass burning facility, CEHI shall be responsible for said conversion, including all construction costs and expenses related thereto, and for the subsequent operation of said mass burning Facility. OWER shall, in good faith, cooperate with CEHI for an orderly transition of operations. 16.3.2 Transfer of Interest. At the time said conversion is completed and operation begins as a mass burning facility accepted by the City, OWER shall immediately transfer, free of charge, any and all rights and interest in the Partnership and/or the Facility to CEHI, whereupon CEHI shall assume all guarantees and obligations of the Partnership to the City. Said assumption by CEHI of all guarantees and obligations shall not be construed as a release of OWER by CEHI for any indemnification or obligation or reimbursement due CEHI prior to the time of said transfer for any third party liability or claim, or from the applicable provisions of Articles VIII, XIII, XIV and XV hereinabove. The foregoing notwithstanding, in no event shall OWER's liability under this Section 16.3 and this Agreement exceed that liability which OWER would have incurred under this Agreement if the City did not have the right under Section 6.10 of the Disposal Services Contract to require conversion to a mass burning facility. -32- 16.3.3 Winding Up of Partnership. Upon said transfer of OWER's rights and interests to CEHI, the Partnership's assets and liabilities shall be accounted for in the same manner as contemplated in a Partnership termination under Article IX, in order to determine what obligations, if any, are due CEHI from OWER. After said transfer and winding up of OWER's interests and obligations, OWER shall no longer have any interest (except nominally as may be necessary to continue the Partnership's existence) in the Partnership and all obligations and liabilities of the Partnership thereafter shall be borne by CEHI. The Partnership shall continue after said transfer only so long as necessary to permit CEHI to satisfy or assume the Partnership's obligations to the City under the Construction and Disposal Services Contracts. Thereafter, the Partnership shall terminate. 16.3.4 OWER Option to Operate. In the event conversion to a mass burning facility is required during the term of the Disposal Services Contract, then OWER shall have the option to continue operating the facility, provided OWER exercises said option within 72 hours after the converted facility is accepted by the City. If the option is exercised, OWER shall operate the converted facility for the term of the Disposal Services Contract and under the same terms and conditions as set forth in this Agreement; except, however, Sections 7.9.1(b) (ii) and 8.3 of this Agreement shall not apply, and the parties' respective allocations of profits and losses shall be directly proportionate to the adverse economic consequences suffered by each party as a result of conversion of the Facility to mass burning pursuant to Section 16.3 herein and Section 6.10 of the Disposal Services Contract. -33- 16.4 Amendment. This Agreement may be amended by the Partners only pursuant to a written instrument duly executed by each Partner. 16.5 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to the persons or circumstances shall not be affected thereby. 16.6 No Waiver. The failure of either Partner to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Agreement shall not constitute a waiver of its right to seek redress or performance for a subsequent or other violation. 16.7 Documents. 16.7.1 Access to Documentation. Each Partner shall have access to work carried out by the other Partner in connection with the design, construction, shakedown, testing, operation and maintenance of the Facility, as far as this is necessary for furtherance of the work and this Agreement. Copies of all final documents submitted to the City and HECO shall be made available to and approved by each Partner in accordance with Exhibit B attached hereto. All documentation shall be treated in a confidential manner and as provided in Article XV hereof, and shall not be used for any application other than that covered by this Agreement. 16.7.2 Ownership of Documents. The Partners agree that all memoranda, notes, records, paper, reports, analyses or other documents and all copies thereof relating to each other's operations or business, some of which may be prepared by the other Partner, in any way obtained by a Partner shall be the respective Partner's exclusive property. Each Partner shall not, except for use by the Partnership in the rendering of its respective -34- services for the Facility or with consent of the other Partner, copy or duplicate any of the aforementioned documents nor use any information concerning them except for the Partnership's benefit either during the term of this Agreement or thereafter. In the event of any conflict or inconsistency between this Section 16.7.2 and Article XV, Article XV shall control. 16.8 Notices. Except as otherwise provided in Section 7.1 of this Agreement, any notices, demands or other communications required or desired to be given or made under the terms of this Agreement shall be in writing and personally served or served by registered or certified mail, deposited in the United States mail with postage thereon fully prepaid and addressed as follows: If to CEHI: Combustion Engineering Hawaii, Inc. P.O. Box 500 Windsor, Connecticut 06095-0500 Attention: Vice President & General Manager - Resource Recovery System Division If to OWER: Oahu Waste Energy Recovery, Inc. P.O. Box 3230 Honolulu, Hawaii 96801 or to such other address as either Partner may designate by written notice to the other. Any notice, demand or other communication shall be deemed given or made on the day served, if personally served, or if mailed (in the manner set forth in Section 7.1(c)), shall be deemed given -35- or made on the date of delivery as indicated by the U.S. Postal Service on the Return Receipt Requested. 16.9 Captions; Pronouns. (a) Any titles or captions of sections or paragraphs contained in this Agreement are solely for convenience and are not a part of and are not intended to govern, limit or aid in the construction of any term or provision of this Agreement. (b) All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the context may require. 16.10 Governing Law. This Agreement and all the instruments executed pursuant thereto shall be governed by and construed in accordance with the laws of the State of Hawaii. 16.11 Binding Effect. The terms and conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 16.12 Counterparts. This Agreement may be executed in any number of counterparts, which when so executed and delivered shall be deemed an original, and such counterparts shall constitute one and the same Agreement. 16.13 Further Assurances. Each Partner agrees to execute such further instruments as may be necessary or desirable to carry out this Agreement. //// //// //// //// //// //// -36- IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed on the day and year written below. COMBUSTION ENGINEERING HAWAII, INC. Dated: 2-28-86 By /s/ John A. Cunningham ----------------------------------------- Its President By /s/ ----------------------------------------- Its Vice President OAHU WASTE ENERGY RECOVERY, INC. Dated: 2-28-86 By /s/ George E.H. John ----------------------------------------- Its President By /s/ Chester A. Richardson ----------------------------------------- Its Secretary -37- EXHIBIT "A" FACILITY WARRANTY (to be furnished) EXHIBIT "B" PARTNERSHIP REVIEW PROCEDURE (to be furnished) EXHIBIT C INDEMNITY AGREEMENT THIS AGREEMENT, made and entered as of the 15th day of November 1983, by and between COMBUSTION ENGINEERING, INC. (hereinafter "C-E"), a Delaware corporation having its principal office in Stamford, Connecticut, and AMFAC, INC. (hereinafter "Amfac"), a Hawaii corporation having its principal office in San Francisco, California. W I T N E S S E T H: WHEREAS, affiliates of C-E and Amfac have entered into the Agreement of Honolulu Resource Recovery Venture (hereinafter the "JV Agreement") for the purpose of designing, constructing, operating and maintaining a solid waste processing and resource recovery facility for the City and County of Honolulu ("City"), and in furtherance of that purpose have entered into a Construction Contract and a Disposal Services Contract with the City; WHEREAS, pursuant to said Construction Disposal Services Contracts with the City, C-E and Amfac each, individually, executed a Construction Guaranty Agreement and Operating Guaranty Agreement for the City; WHEREAS, the willingness of C-E and Amfac to execute said Guaranty Agreements was premised upon the execution of this Indemnity Agreement; and WHEREAS, the willingness of C-E's and Amfac's affiliates to enter into the 311 Agreement is premised upon the execution of this Indemnity Agreement; NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, the parties hereto hereby agree as follows: 1 1. For purposes hereunder, the Construction Contract, the Construction Guaranty Agreement, the Disposal Services Contract, and the Operating Guaranty Agreement shall each be the respective contract or agreement as defined in the JV Agreement. 2. C-E shall indemnify, defend and hold Amfac (and its affiliates) harmless from and against any and all claims, liabilities, losses, charges and expenses resulting from or arising out of: (i) C-E's failure or refusal to perform any obligations assumed by it under the Construction Guaranty Agreement; and (ii) the failure or refusal of CEHI to perform any obligations assumed by it under or in connection with the Construction Contract and/or Sections 8.2 and 16.3 of the JV Agreement; provided, however, that nothing in this subparagraph 2 (ii) shall impose upon C-E, or be construed as an acceptance by C-E, of any liability or responsibility not assumed by CEHI under the JV Agreement. 3. C-E and Amfac shall each indemnify, defend and hold the other (and its respective affiliates) harmless, from and against any and all claims, liabilities, losses, charges and expenses resulting from or arising out of: (i) the failure or refusal to perform their respective obligations under the Operating Guaranty Agreement; and (ii) the failure or refusal of CEHI (in the case of C-E) or of OWER (in the case of Amfac) to perform any obligations assumed thereby under or in connection with the Disposal Services Contract, and/or Section 8.3 of the JV Agreement; provided, however, that nothing in this Paragraph 3 shall impose upon either C-E or Amfac, or be construed as an acceptance by either C-E or Amfac, of any liability or responsibility not 2 assumed by or imposed upon CEHI (in the case of C-E) or OWER (in the case of Amfac) under the JV Agreement. 4. In no event, whether as a result of breach of the 311 Agreement, the Construction Contract, Disposal Services Contract, the Construction Guaranty Agreement, the Operating Guaranty Agreement, or the Power Purchase Contract, or tort (including but not limited to negligence), or any warranty, or liability without fault, or otherwise, shall either C-E or Amfac, or their respective Affiliates, be liable to the other, or their respective Affiliates, for special, incidental, punitive or consequential damages, including without limitation, loss of profits or revenue, loss of use, losses by reason of Facility shutdown or service interruption. The foregoing notwithstanding, the waiver contained herein shall not apply to third party claims of whatever nature or kind, or to claims by C-E or Amfac, or their respective Affiliates, arising from or as a result of fraud or willful misconduct by the other party (or its Affiliates). 5. This Indemnity Agreement may be signed in counterparts, which when so executed and delivered shall be deemed an original, and such counterparts shall constitute one and the same Indemnity Agreement. 3 IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed the day and year written below. COMBUSTION ENGINEERING, INC. Dated: _________________________ By ___________________________________________ Its By ___________________________________________ Its AMFAC, INC. Dated: _________________________ By ___________________________________________ Its By ___________________________________________ Its 4 EX-99.T3B85 163 exhibit_t3b-85.txt Exhibit T3B-85 AMENDED AND RESTATED BY-LAWS OF OGDEN MARTIN SYSTEMS OF INDIANAPOLIS, INC. ARTICLE I CERTIFICATES FOR SHARES Section 1. Certificates. As provided by law, each holder of shares of the corporation shall be entitled to a certificate signed by the president and attested by the secretary, an assistant secretary or a vice president of the corporation certifying the number of shares owned by such shareholder and such other information as may be required by law. Each such Certificate may be sealed with the seal of the corporation or a facsimile thereof. The form of such certificate shall be prescribed by resolution of the board of directors. Section 2. Lost or Destroyed Certificates. If a certificate of any shareholder is lost or destroyed, the board of directors may direct a new certificate be issued to replace such lost or destroyed certificate. Unless waived by the board of directors, the shareholder shall make an affidavit or affirmation of the fact that his certificate is lost or destroyed, shall advertise the same in such manner as the board of directors may require, and shall give the corporation a bond of indemnity in the amount and form which the board of directors may prescribe. Section 3. Transfer of Shares. Shares of the corporation shall be transferable only on the books of the corporation upon presentation of the certificate representing the same, endorsed by an appropriate person or persons and accompanied by (1) reasonable assurance that those endorsements are genuine and effective and (2) a request to register such transfer. Transfers of shares shall be otherwise subject to the provisions of Article 8 of the Indiana Uniform Commercial Code, Inc. Code Chapter 26-1-8, as amended. Section 4. Recognition of Shareholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner notwithstanding any equitable or other claim to, or interest in, such shares on the part of any other person. ARTICLE II MEETINGS OF SHAREHOLDERS Section 1. Annual Meeting. The annual meeting of the shareholders of the corporation shall be held each year on such date and at such time as shall be designated by the board of directors, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 2. Special Meetings. Special meetings of the shareholders may be called by the president, by the board of directors, or by shareholders who hold not less than one-fourth of all the outstanding shares which may be voted on the business proposed to be transacted thereat. Section 3. Location of Meetings. All meetings of shareholders for the election of directors shall be held in New York, New York, or such other city or state and at such place as may be fixed from time to time by the board of directors. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of Indiana as shall be stated in the notice of the meeting or in a duly executed waives of notice thereof. Section 4. Notice of Meetings. Written notice stating the place, day and hour of any meeting of shareholders and, in the case of special meetings or when otherwise required by law, the purpose for which any such meeting is called, shall be delivered or mailed by the secretary of the corporation to each shareholder of record entitled to vote at such meeting, at such address as appears upon the records of the corporation and at least ten (10) days before the date of such meeting, on being notified of the place, day and hour thereof by the officers or persons calling the meeting. Section 5. Waiver of Notice. Notice of any meeting may be waived in writing by any shareholder if the waiver sets forth in reasonable detail the time and place of the meeting and the purposes thereof. Attendance at any meeting in person, or by proxy when the instrument of proxy sets forth in reasonable detail the purposes of such meeting, shall constitute a waiver of notice of such meeting. Section 6. Voting Rights. Each holder of shares of the corporation shall have the voting rights specified in the Articles of Incorporation of the corporation. 2 Section 7. Date of Determination of Voting Rights. The board of directors may fix in advance a date as a record date, not exceeding fifty (50) days prior to the date of any meeting of shareholders for the purpose of determining the shareholders entitled to notice of and to vote at such meeting. In the absence of action by the board of directors to fix a record date as herein provided, the record date shall be the fourteenth (14th) day prior to the date of the meeting. Section 8. Voting by Proxy. A shareholder entitled to vote at any meeting of shareholders may vote either in person or by proxy executed in writing by the shareholder or a duly authorized attorney-in-fact of such shareholder. No proxy shall be voted at any meeting of shareholders unless the same shall be filed with the secretary of the meeting at the commencement thereof. The general proxy of a fiduciary shall be given the same effect as the general proxy of any other shareholder. Section 9. Voting Lists. The secretary shall make, at least five (5) days before each meeting of shareholders at which one or more directors are to be elected, a complete list of the shareholders entitled to vote at such election, arranged in alphabetical order, with the address of each and the number of shares held by each, which list shall be kept on file at the principal office of the corporation and shall be subject to inspection by any shareholder at any time during usual business hours for a period of five (5) days prior to such meeting. The list shall also be produced and kept open at the time and place of election and shall be subject to inspection by any shareholder during the holding of such election. The original share ledger or transfer book, or a duplicate thereof, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book or to vote at any meeting of the shareholders. Section 10. Quorum. At any meeting of shareholders, the holders of a majority of the outstanding shares which may be voted on the business to be transacted at such meeting, represented thereat in person or by proxy, shall constitute a quorum, and a majority vote of such quorum shall be necessary for the transaction of any business by the meeting, unless a greater number is required by law, the Articles of Incorporation or these By-Laws. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a 3 quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. Section 11. Action by Consent. Any action required to be taken at a meeting of shareholders, or any action which may be taken at a meeting of shareholders, may be taken without a meeting but with the same effect as a unanimous vote at a meeting, if, prior to such action, a consent in writing, setting forth the action so taken, shall be signed by all shareholders entitled to vote with respect thereto, and such consent is filed with the minutes of shareholders' proceeding. ARTICLE III BOARD OF DIRECTORS Section 1. Duties and Qualifications. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, the board of directors, except as may be otherwise provided by law or the Articles of Incorporation. Section 2. Number and Terms of Office. The number of directors shall be not less than three nor more than five. Directors need not be residents of the State of Indiana nor shareholders of the corporation. Directors of the corporation shall be elected at each annual meeting of the shareholders to serve for a term of one (1) year and until removal, resignation or death. If the annual meeting of the shareholders is not held at the time designated in these By-Laws, the directors then In office shall hold over until their successors shall be chosen and qualified. Section 3. Vacancies. Any vacancy in the board of directors caused by death, resignation, removal, incapacity or increase in the number of directors may be filled by a majority vote of all the remaining members of the board of directors, although less than a quorum. A director elected to fill a vacancy shall hold office until the next annual or special meeting of shareholders and until his successor shall be elected and qualified. Section 4. Annual Meeting. Unless otherwise agreed upon, the board of directors shall meet immediately following the annual meeting of the shareholders, at the place where such meeting of shareholders was held, for the purpose of election of officers of the corporation and consideration of any other 4 business, which may be brought before the meeting. No notice shall be necessary for the holding of this annual meeting. Section 5. Other Meetings. Regular meetings of the board of directors may be held pursuant to a resolution of the board to such effect. No notice shall be necessary for any regular meeting. Special meetings of the board of directors may be held upon the call of the president or of any two (2) members of the board and upon twenty-four (24) hours' notice specifying the time, place and general purposes of the meeting, given to each director either personally or by telephone or by mail, telegram or photographic or equivalent reproduction of a writing. Notice of a special meeting may be waived in writing before the time of the meeting, at the time of the meeting, or after the time of the meeting. Attendance at any special meeting shall constitute waiver of notice of such meeting. Section 6. Quorum. A majority of the actual number of directors elected and qualified, from time to time, shall be necessary to constitute a quorum for the transaction of any business unless a greater number is required by law, the Articles of Incorporation or these By-Laws, and the act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by law, the Articles of Incorporation, or these By-Laws. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Action by Consent. Any action required or permitted to be taken at any meeting of the board of directors may be taken without a meeting, if prior to such action a written consent to such action is signed by all members of the board and such consent if filed with the minutes of proceedings of the board. Section 8. Committees. The board of directors, by resolution adopted by a majority of the actual number of directors elected and qualified, may designate from among its members an executive committee and one or more other committees, each of which, to the extent provided in such resolution, may have and exercise all the authority of the board of directors, except as may otherwise be provided by law or the Articles of Incorporation. Vacancies in the membership of any such committee shall be filled by the board of directors at a regular or special meeting of the board of directors. Each such committee 5 shall keep regular minutes of its proceedings and report the same to the board when required. Section 9. Conflicts of Interest. No contract or other transaction between the corporation and one or more of its directors, or between the corporation and any other corporation, partnership, trust, firm, association or entity in which one or more of the directors of the corporation is a director, officer, partner, shareholder, member, employee, or agent or is financially interested, shall be either void or voidable because of such relationship or interest or because such director or directors are present at the meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or because the vote(s) of such director or directors is or are counted for such purposes, if: (a) The fact of such relationship or interest is disclosed or known to the board of directors or committee which authorizes, approves, or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested director or directors; or (b) The fact of such relationship or interest is disclosed or known to the shareholders entitled to vote and they authorize, approve or ratify such contract or transaction by vote or written consent sufficient for the purpose; or (c) The contract or transaction is fair and reasonable to the corporation. Such interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction. This section shall not be construed to invalidate any contract or other transaction, which would otherwise be valid under the common and statutory laws applicable thereto. Section 10. Presence. A member of the board of directors or of the executive committee or other committee designated by the board may participate in a meeting of the board or executive or other committee of the board by means of a conference telephone or similar communications equipment by which all persons participating in the meeting can communicate with each other; and participation by these means constitutes presence in person at the meeting for all purposes under these By-Laws. 6 ARTICLE IV OFFICES Section 1. Offices and Qualification Therefor. The officers of the corporation shall consist of a president, one (1) or more vice presidents, a secretary, a treasurer and such assistant officers as the board of directors shall designate. Any two (2) or more offices may be held by the same person. Section 2. Terms of Office. Each officer of the corporation shall be elected annually by the board of directors and its annual meeting and shall hold office until his successor shall be duly elected and qualified. Section 3. Vacancies. Whenever any vacancies shall occur in any of the offices of the corporation for. any reason, the same may be filled by the board of directors at any meeting thereof, and any officer so elected shall hold office until his successor shall be duly elected and qualified. Section 4. Removal. Any officer of the corporation may be removed, with or without cause, by the board of directors whenever a majority of such board shall vote in favor of such removal. Section 5. Compensation. Each officer of the corporation shall receive such compensation for his service in such office as may be fixed by action of the board of directors, duly recorded. ARTICLE V POWERS AND DUTIES OF OFFICERS Section 1. President. Subject to the general control of the board of directors, the president shall manage and supervise all the affairs and personnel of the corporation and shall discharge all the usual functions of the chief executive officer of a corporation. He shall preside at all meetings of shareholders and directors and shall have such other powers and duties as these By-Laws or the board of directors may prescribe. Shares of other corporations owned by this corporation may be voted by the president or by such proxies as the president shall designate. The president shall have authority to execute, with the secretary, powers of attorney appointing other corporations, partnerships or individuals, the agents of the corporation subject to law, the Articles of Incorporation and these By-Laws. 7 Section 2. Vice Presidents. The vice presidents, in the order designated by the board of directors, shall have all the powers of, and perform all the duties incumbent upon, the president during his absence or disability and shall have such other powers and duties as these By-Laws or the board of directors may prescribe. Section 3. Secretary. The secretary shall attend all meetings of the shareholders and of the board of directors, and keep or cause to be kept, a true and complete record of the proceedings of such meetings, and shall perform a like duty, when required, for all standing committees appointed by the board of directors. If required, he shall attest the execution by the corporation of deeds, leases, agreements and other official documents. He shall attend to the giving and serving of all notices of the corporation required by these By-Laws, shall have custody of the books (except books of account) and records of the corporation, and in general shall perform all duties pertaining to the office of secretary and such other duties as these By-Laws or the board of directors may prescribe. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other office, to affix the seal of the corporation and to attest the affixing by his signature. Section 4. Treasurer. The treasurer shall keep correct and complete records of account, showing accurately at all times the financial condition of the corporation. He shall have charge and custody of, and be responsible for, all funds, notes, securities and other valuables which may from time to time come into the possession of the corporation. He shall deposit, or cause to be deposited, all funds of the corporation with such depositaries as the board of directors shall designate. He shall furnish at meetings of the board of directors, or whenever requested, a statement of the financial condition of the corporation, and in general shall perform all duties pertaining to the office of treasurer and such other duties as these By-Laws or the board of directors may prescribe. Section 5. Assistant Officers. The board of directors may from time to time designate and elect assistant officers who shall have such powers and duties as the officers whom they are elected to assist shall specify and delegate to them, and such other powers and duties as these By-Laws or the board of directors may prescribe. An assistant secretary may, in the 8 event of the absence or the disability of the secretary, attest the execution of all documents by the corporation. ARTICLE VI MISCELLANEOUS Section 1. Dividends. Subject to the provisions of the Articles of Incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock subject to any provisions of the Articles of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. Section 2. Checks. All checks or demands for money or notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. Section 3. Corporate Seal. The corporation shall have inscribed on the corporate seal the name of the corporation and the words "Corporate Seal, Indiana." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. Section 4. Execution of Contracts and Other Documents. Unless otherwise ordered by the board of directors, all written contracts and other documents entered into by the corporation shall be executed on behalf of the corporation by the president or a vice president, and, if required, attested by the secretary or an assistant secretary. Section 5. Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors. 9 ARTICLE VII AMENDMENTS Section 1. These By-Laws may be altered, amended or repealed or new by-laws may be adopted (a) at any regular or special meeting of shareholders at which a quorum is present or represented, by the affirmative vote of a majority of the stock entitled to vote, provided notice of the proposed alteration, amendment or appeal be contained in the notice of such meeting, or (b) by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board. 10 Exhibit T3B-85 OGDEN MARTIN SYSTEMS OF INDIANAPOLIS, INC. Action by Unanimous Consent in Writing of the Board of Directors January 9, 1987 The undersigned, constituting the entire Board of Directors of Ogden Martin Systems of Indianapolis, Inc., an Indiana corporation (the "Company"), by unanimous consent in writing pursuant to the authority of Section 23-1-2-11(i) of the Indiana General Corporation Act, without the formality of convening a meeting, do hereby severally and collectively consent to the following action by the Corporation: RESOLVED, that Section 1 of Article II of the By-laws of the Company be and hereby is amended to provide as follows: "Section 1. Annual Meeting. The annual meeting of the shareholders of the corporation shall be held each year on the third Thursday of each May or at such other time as shall be designated by the board of directors, at which they will elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting." and it is further RESOLVED, that the first sentence of Section 2 of Article III of the By-laws of the Company be and hereby are amended to provide as follows: "The number of directors shall be five." /s/ Donald A. Krenz /s/ Robert E. Curry, Jr. - ------------------------ -------------------------- DONALD A. KRENZ ROBERT E. CURRY, JR. /s/ Salvatore S. Ferrara /s/ James M. Russo - ------------------------------ -------------------------- SALVATORE s. FERRARA JAMES M. RUSSO 11 /s/ David L. Sokol ------------------- DAVID L. SOKOL 12 Exhibit T3B-85 OGDEN MARTIN SYSTEMS OF INDIANAPOLIS, INC. Action by Unanimous Consent in Writing of the Sole Shareholder in Lieu of the 1987 Annual Meeting January 19, 1987 The undersigned, constituting the holder of all the outstanding shares of stock of Ogden Martin Systems of Indianapolis, Inc., an Indiana corporation, by unanimous consent in writing pursuant to the authority of Section 23-1-2-9(p) of the Indiana General Corporation Act, without the formality of convening a meeting, does hereby consent to the following action by the Corporation: RESOLVED, that the appropriate section of this Corporation's By-Laws be and is hereby amended to change the number of Directors to "4"; and it is further RESOLVED, that the following persons be and are hereby elected Directors of this Corporation to serve until the next annual meeting of shareholders and their successors are duly elected and qualified to serve: David L. Sokol Albert O. Cornelison, Jr. Robert M. DiGia Salvatore S. Ferrara and it is further RESOLVED, that the officers of this Corporation and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS, INC. By: /s/ J. L. Effinger ----------------------------- J. L. Effinger, Assistant Secretary Exhibit T3B-85 OGDEN MARTIN SYSTEMS OF INDIANAPOLIS, INC. Action by Unanimous Consent in Writing of the Sole Shareholder in Lieu of the 1988 Annual Meeting August 1, 1988 The undersigned, constituting the holder of all the outstanding shares of stock of Ogden Martin Systems of Indianapolis, Inc., an Indiana corporation, by unanimous consent in writing pursuant to the authority of Section 23-1-2-9(p) of the Indiana General Corporation Act, without the formality of convening a meeting, does hereby consent to the following action by the Corporation: RESOLVED, that the appropriate section of this Corporation's by-laws be amended, so that the number of directors of this Corporation as it appears in said by-laws shall be "five"; and it is further RESOLVED, that the following persons be and are hereby elected Directors of this Corporation to serve until the next annual meeting of shareholders and their successors are duly elected and qualified to serve: Ralph E. Ablon Robert M. DiGia Scott G. Mackin Maria P. Monet David L. Sokol and it is further RESOLVED, that the officers of this Corporation and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS, INC. By: /s/ J. L. Effinger ----------------------------- J. L. Effinger, Assistant Secretary Exhibit T3B-85 Action by Unanimous Consent in Writing of of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990 The undersigned, constituting the holder of all the outstanding shares of the corporations listed on Exhibits A, B, and C attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of the corporation listed on Exhibit A hereto be amended to change the number of directors of such corporation to "not less than three nor more than five"; and it is further RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit B hereto be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of each of the corporations listed on Exhibit C hereto to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott G. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS, INC. By: /s/ Scott C. Mackin --------------------------------- Scott C. Mackin First Executive Vice President 16 EXHIBIT A Ogden Martin Systems of Indianapolis, Inc. EXHIBIT B Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntsville, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C Ogden Marion Land Corp. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Indianapolis, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Martin Systems of Union, Inc. Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by -- laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject, to the control of the Board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents arid take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions /s/ R. Richard Ablon /s/ Scott G. Mackin - ----------------------- ----------------------- 21 R. Richard Ablon Scott G. Mackin /s/ Bruce W. Stone ------------------------ Bruce W. Stone 22 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 24 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. EX-99.T3B86 164 exhibit_t3b-86.txt Exhibit T3B-86 OGDEN MARION LAND CORP. BY-LAWS ARTICLE I OFFICES Section 1. The registered office shall be located in Portland, Oregon. Section 2. The corporation may also have offices at such other places both within and without the state of Oregon as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders for the election of directors shall be held at such place as may be fixed from time to time by the board of directors. Section 2. Annual meetings of shareholders shall be held on the first business day of the second week in May each year, at which the shareholders shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the time, place, and purpose or purposes of the meeting shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, to each shareholder of record entitled to vote at such meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the state of Oregon as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president, the board of directors, or the holders of not less than fifty percent of all the shares entitled to vote at the meeting. Section 3. Written notice of a special meeting stating the time, place, and purpose or purposes of the meeting for which the meeting is called, shall be delivered not less than ten nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the president, the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. Section 4. Business transacted at any special meeting shall be confined to the purpose or purposes stated in the notice thereof. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. The holders of a majority of the shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented at the meeting shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the articles of incorporation. Section 3. Each outstanding share of stock having voting power shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders, unless otherwise provided in the articles of incorporation. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his agent. 2 In all elections for directors every shareholder entitled to vote shall have the right to vote, in person or by proxy, the number of shares of stock owned by him, for as many persons as there are directors to be elected and for whose election he has a right to vote, or, if the articles of incorporation so provide, to cumulate the vote of said shares, and give one candidate as many votes as the number of directors multiplied by the aggregate number of his votes shall equal, or to distribute the votes on the same principle among as many candidates as he may see fit. Section 4. Subject to statutory provisions, any action required to be taken at a meeting of the shareholders may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. ARTICLE V DIRECTORS Section 1. The number of directors which shall constitute the whole board of directors, other than the first board of directors, shall be not less than three nor more than six. The exact number of directors within such maximum and minimum shall be determined by resolution of the board of directors or by the shareholders at an annual meeting or special meeting. Directors need not be residents of the state of Oregon nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Unless otherwise provided in the articles of incorporation, any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors though less than a quorum of the board of directors. A director elected to fill a vacancy shall be elected for the unexpired portion of the term of his predecessor in office. Any directorship to be filled by reason of an increase in the number of directors shall be filled by election at an annual meeting or at a special meeting of shareholders called 3 for that purpose. A director elected to fill a newly created directorship shall serve until the next succeeding annual meeting of shareholders and until his successor shall have been elected and qualified. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of incorporation or by these by-laws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books and records of the corporation, except such as are required by law to be kept within the state, outside of the state of Oregon, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the state of Oregon. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on three days notice to each 4 director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors. Notice need not be given to any director who signs a waiver of notice, whether before or after the meeting. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater or lesser number is required by statute or by the articles of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater or lesser number is required by statute or by the articles of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Unless otherwise provided by the articles of incorporation, any action required to be taken at a meeting of the board, or any committee thereof, shall be deemed the action of the board of directors or of a committee thereof, if all directors or committee members, as the case may be, execute either before or after the action is taken, a written consent thereto, and the consent is filed with the records of the corporation. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the by-laws or otherwise, may designate one or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board 5 of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of incorporation or of these by-laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the articles of incorporation or these by-laws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board of directors. 6 Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages, and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. VICE-PRESIDENTS Section 8. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of 7 the corporate seal of the corporation, and he or an assistant secretary shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the 8 powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by certificates signed by the president or a vice-president and by the secretary or an assistant secretary of the corporation, and may be sealed with the seal of the corporation or a facsimile thereof. When the corporation is authorized to issue shares of more than one class there shall be set forth upon the face or back of the certificate, or the certificate shall have a statement that the corporation will furnish to any shareholder upon request and without charge, a full statement of the designations, preferences, limitations, and relative rights of the shares of each class authorized to be issued and, if the corporation is authorized to issue any preferred or special class in series, the variations in the relative rights and preferences between the shares of each series so far as the same have been fixed and determined and the authority of the board of directors to fix and determine the relative rights and preferences of subsequent series. Section 2. The signatures of the officers of the corporation upon a certificate may be facsimiles if the certificate is countersigned by a transfer agent, or registered by a registrar, other than the corporation itself or an employee of the corporation. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer at the date of its issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation 9 from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate canceled and the transaction recorded upon the books of the corporation. CLOSING OF TRANSFER BOOKS Section 5. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof or entitled to receive payment of any dividend or allotment of any right, or entitled to give a written consent to any action without a meeting, or in order to make a determination of shareholders for any other proper purpose, the board of directors may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, fifty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days immediately preceding such meeting. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to give a written consent to any action without a meeting, such books may not be closed for more than fifty days before the date fixed for tabulation of consents or if no date has been fixed for tabulation, the books may not be closed for more than fifty days before the last day on which consents received may be counted. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than fifty days and, in case of a meeting of shareholders, not less than ten days prior to the date on which the particular action, requiring such determination of shareholders, is to be taken and, in case of determining shareholders entitled to give a written consent the record date may not be more than fifty days before the date fixed for tabulation of the consents, or if no date has been fixed for the tabulation, more than fifty days before the last day on which consents may be counted. If the stock transfer books are not closed and no record date is fixed, the record date for a shareholders' meeting shall be the close of business on the day 10 next preceding the day on which notice is given; and the record date for determining shareholders for any other purpose shall be at the close of business on the day on which the resolution of the board relating thereto is adopted. When a determination of shareholders of record for a shareholders' meeting has been made as provided in this section, such determination shall apply to any adjournment thereof unless the board fixes a new record date for the adjourned meeting. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Oregon. LIST OF SHAREHOLDERS Section 7. The officer or agent having charge of the transfer books for shares shall make, at least ten days before each meeting of shareholders, and certify a complete list of the shareholders entitled to vote at such meeting, or adjournment thereof, arranged in alphabetical order, with the address of, and the number of shares held by each shareholder, which list, for a period of ten days prior to such meeting, shall be kept on file at the registered office of the corporation and shall be subject to inspection by any shareholder at any time during regular business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original transfer books shall be prima facie evidence as to who are the shareholders entitled to examine such list or transfer books or to vote at any meeting of the shareholders. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the articles of incorporation relating thereto, if any, dividends may be 11 declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in the bonds or shares of the corporation or other property including the shares or bonds of other corporations subject to any provisions of law and of the articles of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Oregon." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These by-laws may be altered, amended, or repealed or new by-laws may be adopted by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board, subject to any provision in the articles of incorporation reserving to the shareholders the power to adopt, amend, or repeal by-laws, but by-laws made by the board may be altered or repealed and new by-laws made by the 12 shareholders. The shareholders may prescribe that any by-law made by them shall not be altered or repealed by the board. 13 By-Laws Amendment Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section 14 pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents 15 and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibits A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. Richard Ablon /s/ Scott G. Mackin - ------------------------ ------------------------ R. RICHARD ABLON SCOTT G. MACKIN /s/ Bruce W. Stone ------------------------ BRUCE W. STONE 16 EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. 17 EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 18 EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. 19 EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. 20 EX-99.T3B87 165 exhibit_t3b-87.txt Exhibit T3B-87 BY-LAWS OF CITICORP OMEGA LEASE, INC. ARTICLE I. Offices. SECTION 1. Registered Office. - The registered office of Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware. SECTION 2. Other Offices. - The Corporation may establish or discontinue, from time to time, such other offices and places of business as may be deemed proper for the conduct of the Corporation's business. ARTICLE II. Meetings of Stockholders. SECTION 1. Annual Meeting. - The annual meeting of stockholders for the election of directors and the transaction of such other business as may properly come before the meeting shall be held on the fourth Thursday in April of each year, or, if that day be a legal holiday, on the next succeeding day not a legal holiday, at such place, either within or without the State of Delaware, and at such hour as shall be specified in a notice given as provided in Section 3 of this Article II or in a waiver of notice thereof. SECTION 2. Special Meetings. - Special meetings of the stockholders may be called at any time by the Board of Directors and shall be called by the Secretary upon the written request, stating the purpose or purposes of any such meeting, of the holders of common stock who hold of record collectively at least one-third of the outstanding shares of common stock. Such meetings shall be held at such place, either within or without the State of Delaware, and at such date and hour as shall be specified in a notice given as provided in Section 3 of this Article II or in a waiver of notice thereof. Unless limited by law, the Certificate of Incorporation, the By-Laws, or by the terms of the notice thereof, any and all business may be transacted at any special meeting of stockholders. SECTION 3. Notice of Meetings. - Except as otherwise provided or permitted by law, the Certificate of Incorporation, or the By-Laws, notice of each meeting of stockholder shall be given to each stockholder of record entitled to vote thereat either by delivering such notice to him personally or by mailing the same to him. If mailed, the notice shall be directed to the stockholder in a postage-prepaid envelope at his address as it appears on the records of the Corporation unless, prior to the time of mailing, he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request. Notice of each meeting of stockholders shall be in such form as is approved by the Board of Directors or by the Chairman, or in his absence the President, and shall state the place, date and hour of the meeting, and if for a special meeting the purpose or purposes for which the meeting is called, and shall be given not less then ten nor more than fifty days before the date of the meeting. No notice of the time and place of an adjourned annual or special meeting of stockholders need be given other than by announcement at the meeting at which such adjournment is taken. SECTION 4. Organization. - The Chairman shall act as chairman at all meetings of stockholders and as such chairman shall call all meetings of stockholders to order and preside thereat. In the absence of the Chairman, the President shall act as such chairman. The Board of Directors may designate an alternate chairman for any meeting of stockholders, and if the Chairman and the President are absent from a meeting and such an alternate chairman has been designated therefor, he shall act as chairman of the meeting. In the absence of the Chairman, the President, and such an alternate chairman, or if no such alternate chairman has been designated for a meeting and the Chairman and the President are absent therefrom, any stockholder or the proxy of any stockholder entitled to vote at the meeting may call the meeting to order and a chairman shall be elected, who shall preside thereat. The Secretary of the Corporation shall act as secretary at all meetings of the stockholders, but in his absence the chairman of the meeting may appoint any person present to act as secretary of the meeting. SECTION 5. Quorum and Adjournment. - Except as otherwise provided by law or by the Certificate of 2 Incorporation, the holders of a majority of the shares of stock entitled to vote at the meeting shall constitute a quorum at all meetings of the stockholders. In the absence of a quorum, the holders of a majority of the shares of stock present in person or by proxy and entitled to vote may adjourn any meeting, from time to time, until a quorum shall attend. At any such adjourned meeting at which a quorum may be present, any business may be transacted which might have been transacted at the meeting as originally called. No notice of any adjourned meeting need be given other than by announcement at the meeting that is being adjourned. SECTION 6. Order of Business. - The order of business at all meetings of stockholders shall be as determined by the chairman of the meeting or as is otherwise determined by the vote of the holders of a majority of the shares of stock present in person or by proxy and entitled to vote. SECTION 7. Vote of Stockholders. - Except as otherwise required by law or the Certificate of Incorporation, all action by stockholders shall be taken at stockholders' meetings unless the Board of Directors shall determine that such action shall be taken by written consent of stockholders. The vote in the election of directors at a meeting of stockholders shall be by ballot unless the Board of Directors determines otherwise, and the vote upon any question before a meeting of stockholders shall be by ballot if so directed by the chairman of the meeting. In a vote by ballot each ballot shall state the number of shares voted and the name of the stockholder or proxy voting. Except as otherwise required by law or by the Certificate of Incorporation, directors to be elected at a meeting of stockholders shall be elected by a plurality of the votes cast at such meeting by the holders of shares entitled to vote in the election and whenever any corporate action, other than the election of directors, is to be taken by vote of the stockholders at a meeting thereof, it shall be authorized by a majority of the votes cast at such meeting by the holders of stock entitled to vote thereon. ARTICLE III. Board of Directors SECTION 1. Number. - The number of directors at constituting the Board of Directors of the Corporation shall be such number as is fixed from time to time by resolution adopted by the Board of Directors or by the stockholders or prior to the 3 election of the initial Board of Directors the incorporators. Any newly created directorships and vacancies occurring in the Board of Directors shall be filled by vote of a majority of the directors then in office, although less than a quorum. SECTION 2. General Powers. - The business, properties and affairs of the Corporation shall be managed by the Board of Directors, which, without limiting the generality of the foregoing, shall have power to appoint the officers of the Corporation, to appoint and direct agents, and to grant general or limited authority to officers, employees and agents of the Corporation to make, execute and deliver contracts and other instruments and documents in the name and on behalf of the Corporation and over its seal, without specific authority in each case. In addition, the Board of Directors may exercise all the powers of the Corporation and do all lawful acts and things which are not reserved to the stockholders by law or the Certificate of Incorporation. SECTION 3. Place of Meeting. - Meetings of the Board of Directors, whether regular or special, shall be held at such place within or without the State of Delaware as may, from time to time, be fixed by resolution of the Board of Directors, provided that the place so fixed for any meeting may be changed to another place, in the case of a regular meeting by order of the Chairman, or in his absence the President, and in the case of a special meeting by order of the person or persons at whose request the meeting is called, if in either case such other place is specified in a notice given as provided in Section 6 of this Article III or in a waiver of notice thereof. SECTION 4. Organization Meeting. - A newly elected Board of Directors shall meet and organize, as soon as practicable, after each annual meeting of stockholders, at the place last fixed by the Board of Directors pursuant to Section 3 of this Article III, without notice of such meeting, provided a majority of the whole Board of Directors is present. If such a majority is not present, such organization meeting may be held at any other time or place which may be specified in a notice given as provided in Section 6 of this Article III or in a waiver of notice thereof. Any business which may properly be transacted by the Board of Directors may be transacted at any organization meeting thereof. SECTION 5. Regular Meetings. - The Board of Directors shall meet, without notice, on such dates, and at such hours, as may, from time to time, be fixed by resolution of the Board of Directors and, if any such date shall be a legal holiday, the 4 meeting, unless the Board of Directors shall otherwise determine, shall be held at the same place where the meeting was to be held, on the next succeeding business day not a legal holiday, at the hour fixed as aforesaid. Any regular meeting may be cancelled upon notice to the directors by order of the Board of Directors at any previous meeting or by order of the Chairman, or in his absence the President, and in such event shall not be held. Any business which properly may be transacted by the Board of Directors may be transacted at any regular meeting thereof. SECTION 6. Special Meetings: Notice and Waiver of Notice. - Special meetings of the Board of Directors shall be called by the Secretary on the request of the Chairman, or in his absence the President, or on the request in writing of any two directors stating the purpose or purposes of such meeting. Notice of any special meeting shall be in form approved by the Chairman, or in his absence the President, or if the meeting is called pursuant to the request of some other directors and there shall be a failure to approve the form of notice as aforesaid, then in form approved by such directors. Notices of special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, not later than two days before the day on which the meeting is to be held, or shall be sent to him at such place by telegraph, or be delivered personally or by telephone, not later than the day before such day of meeting. Notice of any meeting of the Board of Directors need not be given to any director, if waived by him in writing, before, at, or after such meeting is held, or if he shall be present at the meeting without protesting, prior thereto or at its commencement, the lack of notice to him; and any meeting of the Board of Directors shall be a legal meeting without any notice thereof having been given, if all the members shall be present thereat. Unless limited by law, the Certificate of Incorporation, the By-Laws, or by the terms of the notice thereof, any and all business may be transacted at any special meeting. SECTION 7. Organization. - The Chairman shall preside at all meetings of the Board of Directors. In the absence of the Chairman, the President shall preside at all meetings of the Board of Directors. In the absence of the Chairman and the President, a temporary chairman may be chosen by the members of the Board of Directors present. The Secretary of the Corporation shall act as the secretary at all meetings of the Board of Directors and in his absence a temporary secretary shall be appointed by the chairman of the meeting. 5 SECTION 8. Quorum and Manner of Acting. - At every meeting of the Board of Directors one-third of the entire Board of Directors shall constitute a quorum; and, except as otherwise provided by law, or by Section 1 of Article IV, the vote of a majority of the directors present at any such meeting at which a quorum is present shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn any meeting from time to time, until a quorum is present. No notice of any adjourned meeting need be given other than by announcement at the meeting that is being adjourned. SECTION 9. Voting. - On any question on which the Board of Directors or the Executive Committee of the Board of Directors (which Committee is provided for in Article IV and is hereinafter referred to as the "Executive Committee") shall vote, the names of those voting and their votes shall be entered in the minutes of the meeting when any member of the Board of Directors or the Executive Committee so requests. SECTION 10. Directors' Compensation. - The Board of Directors shall have authority to determine from time to time, the amount of compensation which shall be paid to any of its members. Directors shall receive transportation and other expenses of attendance. SECTION 11. Resignations. - Any director may resign at any time either by oral tender of resignation at any meeting of the Board of Directors or by such tender to the Chairman or the President, or by giving written notice thereof to the Corporation. Any resignation shall be effective immediately unless a date certain is specified for it to take effect. ARTICLE IV. Executive Committee; Other Committees. SECTION 1. Executive Committee. - (a) Constitution and Powers. - The Board of Directors may, by resolution adopted by the affirmative vote of a majority of the whole Board of Directors, appoint an Executive Committee consisting of two or more directors. The Executive Committee shall have and may exercise, when the Board of Directors is not in session, all the powers of the Board of Directors in the management of the business and affairs of the corporation including authority to take all action provided in the By-Laws to be taken by the Board of Directors, including the power and 6 authority to declare dividends and to authorize the issuance of stock and other securities of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but the Executive Committee shall not have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-Laws. The Board of Directors may appoint one of the members of the Executive Committee to be its Chairman. (b) Meetings. - The Executive Committee may make rules for holding and conducting its meetings and shall keep minutes thereof. Such minutes shall be submitted at the next regular meeting of the Board of Directors, and any action taken by the Board of Directors with respect thereto shall be entered in the minutes of the Board of Directors. All acts done and powers conferred by the Executive Committee from time to time shall be deemed to be, and may be certified as being, done or conferred under authority of the Board. (c) Quorum. - A majority of the members of the Executive Committee shall constitute a quorum at any meeting of the Committee, and the vote of a majority of the members present at any such meeting at which a quorum is present shall suffice for the transaction of business. SECTION 2. Other Committees. - The Board of Directors may, from time to time, appoint other committees which shall have such powers and duties as the Board of Directors may properly determine, and may appoint one of the members of any such other committee to be its Chairman. SECTION 3. Place and Call of Meetings: Notice and Waiver of Notice. - Meetings of committees of the Board of Directors shall be held at such places as the committee in question may, from time to time, determine and may be called by the Chairman of such committee or by the Secretary at the request of any other member thereof. Notice of any meeting of any committee of the Board of Directors shall be in form approved by the Chairman of such committee, or if the meeting is called pursuant to the request of some other member of such committee and there is a failure to approve the form of notice as aforesaid, then in the form approved by such member. The provisions of Section 6 of Article III with respect to the 7 giving and waiver of notice of special meetings of the Board of Directors shall also apply to all meetings of such committee. ARTICLE V The Officers. SECTION 1. Officers. - The Corporation shall have a Chairman, may have a President, one or more Vice Presidents, a Comptroller and a Treasurer, and shall have a Secretary; and such officers shall be appointed by the Board of Directors. The Board of Directors may also appoint one or more Assistant Comptrollers, Assistant Secretaries, Assistant Treasurers, and such other officers and agents as in their judgment the business of the Corporation may require, and any such officers other than Assistant Comptrollers may be appointed, subject to the authority of the Board of Directors, by the Chairman or the President. SECTION 2. Term of Office. - All officers shall hold office during the pleasure of and until removed by the Board of Directors, or until, in the case of officers who may be appointed by the Chairman or the President, removed by either of them. SECTION 3. Resignations. - Any officer may resign at any time either by oral tender of resignation to the Chairman or the President or by giving written notice thereof to the Corporation. Any resignation shall be effective immediately unless a date certain is specified for it to take effect. SECTION 4. The Chairman. - The Chairman shall be the Chief Executive Officer of the Corporation, and shall have general executive powers as well as the specific powers conferred by these By-Laws. He shall preside at meetings of the Board of Directors and at meetings of the stockholders. SECTION 5. The President. - The President shall be the Chief Administrative Officer of the Corporation, shall have general executive powers as well as the specific powers conferred by these By-Laws, and shall have any and all other powers and duties pertaining by law, regulation, or practice to the office of President. In the absence of the Chairman, the President shall exercise his powers and duties and shall preside at meetings of the Board of Directors and at meetings of the stockholders. 8 SECTION 6. The Vice Presidents. - The several Vice Presidents shall perform such duties and have such powers as may from time to time, be assigned to them by the Board of Directors, the Chairman or the President. SECTION 7. The Secretary. - The Secretary shall attend to the giving of notice of all meetings of stockholders and of the Board of Directors and committees thereof, and shall keep minutes of all proceedings at meetings of the stockholders and of the Board of Directors as well as of all proceedings at all meetings of regular committees of the Board of Directors. He shall have charge of the corporate seal and shall have authority to attest any and all instruments or writings to which the same may be affixed. He shall have charge of the stock ledger and shall keep and account for all books, documents, papers and records of the Corporation, except those for which some other officer or agent is properly accountable. He shall generally perform all the duties usually appertaining to the office of Secretary of a corporation. In the absence of the Secretary, such person as shall be designated by the Chairman shall perform his duties. SECTION 8. The Comptroller. - The Board of Directors may appoint a Comptroller, who shall be the chief auditing officer of the Corporation. He shall continuously examine the affairs of the Corporation, and shall report to the Board of Directors. He shall have and may exercise the powers conferred by these By-Laws and such further powers and duties as from time to time may be conferred upon, or assigned to, him by the Board of Directors. SECTION 9. The Treasurer. - The Treasurer shall be the chief financial officer of the Corporation. He shall have the care and custody of all funds of the Corporation and shall deposit the same in such banks, including any banking affiliates of the corporation, or other depositories as the Board of Directors, or any officer or officers, or any officer and agent jointly, thereunto duly authorized by the Board of Directors, shall, from time to time, direct or approve. He shall keep a full and accurate account of all moneys received and paid on account of the Corporation, and shall render a statement of his accounts whenever the Board of Directors shall require. He shall perform all other necessary acts and duties in connection with the administration of the financial affairs of the Corporation, and shall generally perform all the duties usually appertaining to the office of Treasurer of a corporation. When required by the Board of Directors, he shall give bonds for the faithful discharge of his duties in such sums and with such sureties as 9 the Board of Directors shall approve. In the absence of the Treasurer, such person as shall be designated by the Chairman shall perform his duties. ARTICLE VI. Stock and Transfers of Stock. SECTION 1. Stock Certificates. - The stock of the Corporation shall be represented by certificates signed by the Chairman or President and the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer. Where any such certificate is countersigned by a Transfer Agent, other than the Corporation or its employee, or by a Registrar, other than the Corporation or its employee, any other signature on such certificate may be a facsimile, engraved, stamped or printed. In case any such officer, Transfer Agent or Registrar who has signed or whose facsimile signature has been placed upon any such certificate shall have ceased to be such officer, Transfer Agent or Registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such officer, Transfer Agent or Registrar were such officer, Transfer Agent or Registrar at the date of its issue. The certificates representing the stock of the Corporation shall be in such form as shall be approved by the Board of Directors. SECTION 2. Transfer Agents and Registrar. - The Board of Directors may in its discretion, appoint one or more banks or trust companies in the Borough of Manhattan, City, County and State of New York, or in such other city or cities as the Board of Directors may deem advisable, including any banking affiliates of the Corporation, from time to time, to act as Transfer Agents and Registrars of the stock of the Corporation; and upon such appointments being made, no stock certificate shall be valid until countersigned by one of such Transfer Agents and registered by one of such Registrars. SECTION 3. Transfers of Stock. - Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate, or by attorney lawfully constituted in writing, and upon surrender and cancellation of a certificate or certificates for a like number of shares of the same class of stock, with a duly executed assignment and power of transfer endorsed thereon or attached thereto, and with such proof of the authenticity of the signatures as the Corporation or its agents may reasonably require. No transfer of stock other than on the records of the Corporation shall affect the right of the 10 Corporation to pay any dividend upon the stock to the holder of record thereof or to treat the holder of record as the holder in fact thereof for all purposes, and no transfer shall be valid, except between the parties thereto, until such transfer shall have been made upon the records of the Corporation. SECTION 4. Lost Certificates. - In case any certificate of stock shall be lost, stolen or destroyed, the Board of Directors, in its discretion, or any officer or officers or any agent or agents thereunto duly authorized by the Board of Directors, may authorize the issue of a substitute certificate in place of the certificate so lost, stolen or destroyed, and may cause or authorize such substitute certificate to be countersigned by the appropriate Transfer Agent (or where such duly authorized agent is the Transfer Agent may itself countersign), if any, and registered by the appropriate Registrar, if any; provided, however, that, in each such case, the applicant for a substitute certificate shall furnish to the Corporation and to such of its Transfer Agents and Registrars as may require the same, evidence to their satisfaction, in their discretion, of the loss, theft or destruction of such certificate and of the ownership thereof, and also such security or indemnity as may by them be required. ARTICLE VII. Corporate Seal. SECTION 1. Seal. - The seal of the Corporation shall be in such form as may be approved, from time to time, by the Board of Directors. SECTION 2. Affixing and Attesting. - The seal of the Corporation shall be in the custody of the Secretary, who shall have power to affix it to the proper corporate instruments and documents, and who shall attest it. In his absence, it may be affixed and attested by an Assistant Secretary, or by the Treasurer or an Assistant Treasurer or by any other person or persons as may be designated by the Board of Directors. 11 ARTICLE IX. Amendments. The By-Laws may be altered, amended or repealed, and new By-Laws adopted, from time to time, by the Board of Directors at any regular or special meeting. 12 EX-99.T3B88 166 exhibit_t3b-88.txt Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. OGDEN MARTIN SYSTEMS OF STANISLAUS, INC. * * * * * BYLAWS * * * * * ARTICLE I OFFICES Section 1. The principal executive office shall be located in New York, New York. Section 2. The corporation may also have offices at such other places both within and without the State of California as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II ANNUAL MEETINGS OF SHAREHOLDERS Section 1. All meetings of shareholders shall be held at such place, either within or without the State of California as shall be designated from time to time by the board of directors and stated in the notice of the meeting, or in a duly executed waiver of notice thereof. If no place is stated or fixed, then shareholders' meetings shall be held at the principal executive office of the corporation. 1 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. Section 2. Annual meetings of shareholders, shall be held at such date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written or printed notice of the annual meeting stating the place, day and hour of the meeting shall be given to each shareholder entitled to vote thereat not less than ten (or, if sent by third -- class mail, thirty) nor more than sixty days before the date of the meeting. Notice may be sent by third-class mail only if the outstanding shares of the corporation are held of record by five hundred or more people (determined as provided in section 605 of the California Corporations Code) on the record date for the shareholders' meeting. ARTICLE III SPECIAL MEETINGS OF SHAREHOLDERS Section 1. Special meetings of shareholders for any purpose other than the election of directors may be held at such time and place within or without the State of California as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. 2 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. Section 2. Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the articles of incorporation, may be called by the president, the board of directors, or the holders of not less than ten percent of all the shares entitled to vote at the meeting and if the corporation has a chairman of the board of directors then special meetings of the shareholders may be called by the chairman. Section 3. Written or printed notice of a special meeting of shareholders, stating the time, place and purpose or purposes thereof, shall be given to each shareholder entitled to vote thereat not less than ten (or, if sent by third -- class mail, thirty) nor more than sixty days before the date fixed for the meeting. Notice may be sent by third -- class mail only if the outstanding shares of the corporation are held of record by five hundred or more people (determined as provided in section 605 of the California Corporations Code) on the record date for the shareholders' meeting. Section 4. The business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. 3 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. ARTICLE IV QUORUM AND VOTING OF STOCK Section 1. A majority of the shareholders, holding shares of stock issued and outstanding and entitled to vote, represented in person or by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders present in person or represented by proxy shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 2. If a quorum is present, the affirmative vote of a majority of the shares of stock represented and voting at the meeting (which shares voting affirmatively also constitute at least a majority of the required quorum), shall be the act of the shareholders unless the vote of a greater number of shares of stock is required by law or the articles of incorporation. 4 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. Section 3. Each outstanding share of stock, having voting power, shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders. A shareholder may vote either in person or by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. In all elections for directors every shareholder complying with section 708(b) of the California Corporations Code and entitled to vote, shall have the right to vote, in person or by proxy, the number of shares of stock owned by him, for as many persons as there are directors to be elected, or to cumulate the vote of said shares, and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which the shareholder's share are normally entitled, or to distribute the votes on the same principle among as many candidates as he may see fit. As provided in section 708(b) of the California Corporations Code no shareholder shall be entitled to cumulate votes for any candidate for the office of director unless such candidates' names have been placed in nomination prior to the voting and at least one shareholder has given notice at the meeting prior to the voting of his intention to cumulate his votes. Section 4. Unless otherwise provided in the articles, any action except election of directors which may be taken at 5 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. any annual or special meeting of shareholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Except to fill a vacancy in the board of directors not filled by the directors, directors may not be elected by written consent except by unanimous written consent of all shares entitled to vote for the election of directors. Any election of a director to fill a vacancy (other than a vacancy created by removal) not filled by the directors requires the written consent of a majority of the shares entitled to vote. ARTICLE V DIRECTORS Section 1. The number of directors shall be three (see 5/25/90 Shareholder Amendment). Directors need not be residents of the State of California nor shareholders of the corporation. The directors, other than the first board of directors, shall be elected at the annual meeting of the shareholders, and each director elected shall serve until the next succeeding annual meeting and until his successor shall 6 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. have been elected and qualified. The first board of directors shall hold office until the first annual meeting of shareholders. Section 2. Unless otherwise provided in the articles of incorporation vacancies, except for a vacancy created by the removal of a director, and newly created directorships resulting from any increase in the number of directors may be filled by a majority of the directors then in office, though less than a quorum, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify. Unless otherwise provided in the articles of incorporation any vacancy created by the removal of a director shall be filled by the shareholders by the vote of a majority of the shares entitled to vote at a meeting at which a quorum is present. Any vacancies, which may be filled by directors and are not filled by the directors, may be filled by the shareholders by a majority of the shares entitled to vote at a meeting at which a quorum is present. Section 3. The business affairs of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the articles of 7 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. incorporation or by these bylaws directed or required to be exercised or done by the shareholders. Section 4. The directors may keep the books of the corporation, except such as are required by law to be kept within the state, outside of the State of California, at such place or places as they may from time to time determine. Section 5. The board of directors, by the affirmative vote of a majority of the directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. ARTICLE VI MEETINGS OF THE BOARD OF DIRECTORS Section 1. Meetings of the board of directors, regular or special, may be held either within or without the State of California. Section 2. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present, or it may convene at such 8 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. place and time as shall be fixed by the consent in writing of all the directors. Section 3. Regular meetings of the board of directors may be held upon such notice, or without notice, and at such time and at such place as shall from time to time be determined by the board. Section 4. Special meetings of the board of directors may be called by the president on three days' notice to each director, either personally or by mail or by telephone or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 5. Attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. 9 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. Section 6. A majority of the directors shall constitute a quorum for the transaction of business unless a greater number is required by law or by the articles of incorporation. The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the board of directors, unless the act of a greater number is required by statute or by the articles of incorporation. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 7. Any action required or permitted to be taken at a meeting of the directors may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the directors entitled to vote with respect to the subject matter thereof. ARTICLE VII EXECUTIVE COMMITTEE Section 1. The board of directors, by resolution adopted by a majority of the number of directors fixed by the bylaws or otherwise, may designate two or more directors to constitute an executive committee, which committee, to the extent provided in such resolution, shall have and exercise all 10 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. of the authority of the board of directors in the management of the corporation, except as otherwise required by law. Vacancies in the membership of the committee shall be filled by the board of directors at a regular or special meeting of the board of directors. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. The board of directors may designate one or more directors as alternate members of the executive committee. The executive committee shall not have authority: (1) To approve any action which will also require the shareholders' approval; (2) To fill vacancies on the board or in any committee; (3) To fix the compensation of directors for serving on the board or on any committee; (4) To amend or repeal the bylaws or adopt new bylaws; (5) To amend or repeal any resolution of the board which by its express terms is not so amendable or repealable; (6) To make a distribution to the shareholders except at a rate or in a periodic amount or within a price range determined by the board; or (7) To appoint other committees of the board or the members thereof. ARTICLE VIII NOTICES Section 1. Whenever, under the provisions of the statutes or of the articles of incorporation or of these bylaws, 11 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Notice to any shareholder shall be given at the address furnished by such shareholder for the purpose of receiving notice. If such address is not given and if no address appears on the records of the corporation for any shareholder then notice may be given to such shareholder at the place where the principal executive office of the corporation is located or by publication at least once in a newspaper of general circulation in the county in which said principal executive office is located. If a notice of a shareholders' meeting is sent by mail it shall be sent by first -- class mail, or, in case the corporation has outstanding shares held of record by 500 or more persons (determined as provided in section 605 of the California Corporations Code) on the record date for the shareholders' meeting, notice may be by third -- class mail. 12 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. Section 2. Whenever any notice whatever is required to be given under the provisions of the statutes or under the provisions of the articles of incorporation of these bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE IX OFFICERS Section 1. The officers of the corporation, except those elected in accordance with Sec. 210 of the California General Corporation Law, shall be chosen by the board of directors and shall be a president, a vice -- president, a secretary and a treasurer. The board of directors may also choose additional vice -- presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers 13 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 14 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. THE VICE-PRESIDENTS Section 8. The vice -- president, or if there shall be more than one, the vice -- presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant 15 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 10. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all 16 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurer, or, if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE X CERTIFICATES FOR SHARES Section 1. Every holder of shares in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the chairman or vice-chairman of the 17 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. board of directors, or the president or a vice -- president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares and the class or series of shares owned by him in the corporation. If the shares of the corporation are classified or if any class of shares has two or more series, there shall appear on the certificate either (1) a statement of the rights, preferences, privileges and restrictions granted to or imposed upon each class or series of shares to be issued and upon the holders thereof; or (2) a summary of such rights, preferences, privileges and restrictions with reference to the provisions of the articles and any certificates of determination establishing the same; or (3) a statement setting forth the office or agency of the corporation from which shareholders may obtain, upon request and without charge, a copy of the statement referred to in item (1) heretofore. Every certificate shall have noted thereon any information required to be set forth by the California General Corporation Law and such information shall be set forth in the manner provided by such law. Section 2. Any or all of the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such 18 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate to be issued in place of any certificate theretofore issued by the corporation alleged to have been lost or destroyed. When authorizing such issue of a new certificate, the board of directors, in its discretion and as a condition precedent to the issuance thereof, may prescribe such terms and conditions as it deems expedient, and may require such indemnities as it deems adequate, to protect the corporation from any claim that may be made against it with respect to any such certificate alleged to have been lost or destroyed. TRANSFERS OF SHARES Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, a new certificate shall be issued to the person entitled thereto, and the old certificate cancelled and the transaction recorded upon the books of the corporation. 19 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. CLOSING OF TRANSFER BOOKS Section 5. In order that the corporation may determine the shareholders entitled to notice of any meeting or to vote or entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect of any other lawful action, the board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days prior to the date of such meeting nor more than 60 days prior to any other action. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting unless the board fixes a new record date for the adjourned meeting, but the board shall fix a new record date if the meeting is adjourned for more than 45 days from the date set for the original meeting. REGISTERED SHAREHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other 20 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of California. ARTICLE XI GENERAL PROVISIONS DIVIDENDS Section 1. Subject to the provisions of the articles of incorporation relating thereto, if any, dividends may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to any provisions of the articles of incorporation and the California General Corporation Law. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 21 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. CHECKS Section 3. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 4. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 5. The corporate seal shall have inscribed thereon the name of the corporation, the date of its incorporation and the words "Corporate Seal, California". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced. ARTICLE XII AMENDMENTS Section 1. These bylaws may be altered, amended or repealed or new bylaws may be adopted (a) at any regular or special meeting of shareholders at which a quorum is present or represented, by the affirmative vote of a majority of the stock entitled to vote, provided notice of the proposed alteration, amendment or repeal be contained in the notice of such meeting, 22 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. or (b) by the affirmative vote of a majority of the board of directors at any regular or special meeting of the board. The board of directors shall not make or alter any bylaw specifying a fixed number of directors or the maximum or minimum number of directors and the directors shall not change a fixed board to a variable board or vice versa in the bylaws. The board of directors shall not change a bylaw, if any, which requires a larger proportion of the vote of directors for approval than is required by the California General Corporation Law. ARTICLE XIII DIRECTORS' ANNUAL REPORT Section 1. The directors shall cause to be sent to the shareholders not later than one hundred twenty days after the close of the fiscal year, an annual report which shall include a balance sheet as of the closing date of the last fiscal year, and an income statement of changes in financial position for said fiscal year. Said annual report shall be accompanied by any report thereon of independent accountants or, if there is no such report, the certificate of an authorized officer of the corporation that such statements were prepared without audit from the books and records of the corporation. This annual report is hereby waived whenever the corporation 23 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. shall have less than 100 shareholders as defined in Section 605 of the California Corporations Code. Except when said waiver applies the annual report shall be sent to the shareholder at least 15 (or if sent by third-class mail, 35) days prior to the date of the annual meeting. The annual report may be sent by third-class mail only if the corporation has outstanding shares held by 500 or more persons (as determined by the provisions of section 605 of the California Corporations Code) on the record date for the shareholders' meeting. In addition to the financial statements included in the annual report, the annual report of the corporation, if it has more than 100 shareholders as defined in Section 605 of the California Corporations Code and if it has no class of securities registered under Section 12 of the Securities and Exchange Act of 1934, or exempt from such registration by Section 12(g)(2) of said act, shall also describe briefly: (1) Any transaction (excluding compensation of officers and directors) during the previous fiscal year involving an amount in excess of forty thousand dollars ($40,000) (other than contracts let at competitive bids or services rendered at prices regulated by law) to which the corporation or its parent or subsidiary was a party and in which any director or officer of the corporation or of a subsidiary or (if known to the corporation or its parent or subsidiary) any 24 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. holder of more than 10 percent of the outstanding voting shares of the corporation had a direct or indirect material interest, naming such person and stating such person's relationship to the corporation, the nature of such person's interest in the transaction and, where practicable, the amount of such interest; provided, that in the case of a transaction with a partnership of which such person is a partner, only the interest of the partnership need be stated; and provided, further that no such report need be made in the case of transactions approved by the shareholders under subdivision (a) of Section 310 of the California Corporations Code. (2) The amount and circumstances of any indemnification or advances aggregating more than ten thousand dollars ($10,000) paid during the fiscal year to any officer or director of the corporation pursuant to Section 317 of the California Corporations Code, provided, that no such report need be made in the case of indemnification approved by the shareholders under paragraph (2) of subdivision (e) of Section 317 of the California Corporations Code. 25 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states at incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto 26 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further 27 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co-Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J. L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ R. Richard Ablon /s/ Scott G. Mackin - -------------------------- -------------------------- R. RICHARD ABLON SCOTT G. MACKIN /s/ Bruce W. Stone ------------------------ BRUCE W. STONE 28 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill., Inc. Haverhill Power, Inc. U41, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. 29 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 30 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. 31 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. 32 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. BY-LAWS AMENDMENT Action by Unanimous Consent in Writing of of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990 The undersigned, constituting the holder of all the outstanding shares of the corporations listed on Exhibits A, B, and C attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of the corporation listed on Exhibit A hereto be amended to change the number of directors of such corporation to "not less than three nor more than five"; and it is further RESOLVED, that effective as of this date, the appropriate section of the by-laws of each of the corporations listed on Exhibit B hereto be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of each of the corporations listed on Exhibit C hereto to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott C. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and 33 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS, INC. By:_____________________________ Scott G. Mackin First Executive Vice President 34 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. EXHIBIT A Ogden Martin Systems of Indianapolis, Inc. 35 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. EXHIBIT B Ogden Martin Systems of Indianapolis, I Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntsville, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. 36 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. EXHIBIT C Ogden Marion Land Corp. Ogden Martin Systems of Alexandria/Arlington, Inc. OHS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Haverhill, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Hudson,. Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems of Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Indianapolis, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Stanislaus, Inc. OHS Equity of Stanislaus, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Martin Systems of Union, Inc. 37 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. BY-LAWS AMENDMENT STANISLAUS WASTE ENERGY COMPANY Action by Unanimous Consent in Writing of the Sole Shareholder in Lieu of the 1988 Annual Meeting August 1, 1988 The undersigned, constituting the holder of all the outstanding shares of Stanislaus Waste Energy Company, a California corporation, by unanimous consent in writing pursuant to the authority of Section 603 of the California General Corporation Law, without the formality of convening a meeting, does hereby consent to the following action by the Corporation: RESOLVED, that the appropriate section of this Corporation's by-laws be amended, so that the number of directors of this Corporation as it appears in said by-laws shall be "five"; and it is further RESOLVED, that the following persons be and are hereby elected Directors of this Corporation to serve until the next annual meeting of shareholders and their successors are duly elected and qualified to serve: Ralph E. Ablon Robert M. DiGia Scott G. Mackin Maria P. Monet David L. Sokol and it is further 38 Exhibit T3B-88. Bylaws of Covanta Stanislaus, Inc. RESOLVED, that the officers of this Corporation and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS, INC. By: /s/ J.L. Effinger ------------------------------ J. L. Effinger, Assistant Secretary 39 EX-99.T3B89 167 exhibit_t3b-89.txt Exhibit T3B-89 -------------- HAVERHILL POWER, INC. BY-LAWS ARTICLE I - Stockholders 1. Place of Meetings. All meetings of the stockholders shall be held either at the principal office of the Corporation or at such other place in the United States as is determined by the Board of Directors and stated in the notice. 2. Annual Meetings. The annual meeting of the stockholders entitled to vote shall be held at ten o'clock in the forenoon (or at such other time as is determined by the Board of Directors and stated in the notice) on the second Tuesday in May, after the end of each fiscal year and if such day is a legal holiday, then on the next succeeding day that is not a Saturday, Sunday or legal holiday. Purposes for which an annual meeting is to be held, in addition to those prescribed by law, by the Articles of Organization and by the By-Laws, may be specified by the President, the Treasurer or the Board of Directors or, upon written application delivered to the Clerk not less than twenty (20) days before the date of the meeting, by one or more stockholders who are entitled to vote and who hold at least one-tenth part in interest of the capital stock entitled to vote at the meeting. If such annual meeting is not held on the date fixed, or by adjournment therefrom, a special meeting of the stockholders shall be held in place thereof, and any business transacted or elections held at such special meeting shall have the same force and effect as if transacted or held at the annual meeting. Any such special meeting shall be called as provided in Section 3 of this Article I. 3. Special Meetings. Special meetings of the stockholders entitled to vote may be called by the President, the Treasurer or the Directors, and shall be called by the Clerk, or in case of the death, absence, incapacity or refusal of the Clerk, by any other officer, upon written application of one or more stockholders who are entitled to vote and who hold at least one-tenth part in interest of the capital stock entitled to vote at the meetings. The call for the meeting shall state the day, hour, place and purposes of the meeting. 4. Notice of Meetings. Notice of all meetings of stockholders, stating the place, date and hour thereof, and the purposes for which the meeting is called, shall be given by the Clerk or other person calling the meeting. Notice must be given in writing and such writing shall be sufficient if given personally or by telegraph, telex or cable. Notice must be given at least 7 days before the meeting to each stockholder entitled to vote thereat and to each stockholder who, under the Articles of Organization or By-Laws, is entitled to such notice, such notice addressed to his usual place of business or residence as it appears upon the books of the Corporation. No notice of a meeting of the stockholders need be given to any stockholder if such stockholder, by a writing (including, without limitation, by telegraph, telex, telecopy or cable) filed with the records of the meeting (and whether executed before or after such meeting) waives such notice, or if such stockholder attends the meeting without protest prior thereto or at its commencement the lack of notice to him. Every stockholder who is present at a meeting (whether in person or by proxy) shall be deemed to have waived notice thereof; provided, however, that in the absence of his waiver in writing, a stockholder may expressly reserve his objection to the transaction of any business as to which requisite notice was not given to him. 5. Quorum of Stockholders. The holders of a majority interest of all stock issued, outstanding and entitled to vote at a meeting shall constitute a quorum; except that, if two or more classes of stock are outstanding and entitled to vote as separate classes, then in the case of each such class, a quorum shall consist of the holders of a majority in interest of the stock of that class issued, outstanding and entitled to vote. 6. Adjournments. Any meeting of the stockholders may be adjourned to any other time and to any other place by the stockholders present or represented at the meeting, although less than a quorum, or by any officer entitled to preside or to act as clerk of such meeting if no stockholder is present. It shall not be necessary to notify any stockholder of any adjournment. Any business which could have been transacted at any meeting of the stockholders as originally called may be transacted at any adjournment thereof. 7. Votes and Proxies. At all meetings of the stockholders, each stockholder shall have one vote for each share of stock having voting power registered in such stockholder's name, and a proportionate vote for a fractional share, unless otherwise provided by the Articles of Organization or in the By-Laws. Scrip shall not carry any right to vote unless otherwise provided therein; but if scrip provides for the right to vote, such voting shall be on the same basis as fractional shares. Absent stockholders may vote by proxy. No proxy which is dated more than six months before the meeting named therein shall be accepted, and no proxy shall be valid after the final adjournment of such meeting. Proxies need not be sealed or attested. A proxy with respect to stock held in the name of two or more persons shall be valid if executed by one of them unless at or prior to exercise of the proxy the Corporation receives a specific written notice to the contrary from any one of them. A proxy purporting to be executed by or on behalf of a stockholder shall be deemed valid unless challenged at or prior to its exercise. 8. Action at Meeting. When a quorum is present, the holders of a majority of the stock present or represented and voting on a matter (or if there are two or more classes of stock entitled to vote as separate classes, then in the case of each such class, the holders of a majority of the stock of that class present or represented and voting on a matter), except where a larger vote is required by law, the Articles of Organization or these By-Laws, shall decide any matter to be voted on by the stockholders. Any election by stockholders shall be determined by a plurality of the votes cast by the stockholders entitled to vote at the election. No ballot shall be required for such election unless requested by a stockholder present or represented at the meeting and entitled to vote in the election. The Corporation shall not directly or indirectly vote any share of its stock. 9. Action without Meeting. Any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting if all stockholders entitled to vote on the matter consent to the action in writing and the written consents are filed with the records of the meetings of stockholders. Such consents shall be treated for all purposes as a vote at a meeting. ARTICLE II - Officers and Directors 1. Elections. The Corporation shall have a Board of Directors consisting of such number (but not less than the minimum number required by law) as may be fixed by the stockholders, a President, a Treasurer and a Clerk. At each annual meeting, the stockholders shall fix the number of Directors to be elected, and shall elect the Board of Directors. At any meeting, the stockholders may increase or decrease the number of Directors within the limits above specified. The President, the Treasurer and the Clerk shall be elected annually by the Directors at their first meeting following the annual meeting of the stockholders. The Board of Directors may, from time to time, elect or appoint such other officers as it may determine, including a Chairman of the Board, one or more Vice-Presidents, one or more Assistant Treasurers, one or more Assistant Clerks, and a Secretary. No officer or director need be a stockholder. The President and Chairman of the Board shall be elected by and from the Board of Directors, but no other officer need be a director. Two or more offices may be held by any person. If required by vote of the Board of Directors, an officer shall give bond to the Corporation for the faithful performance of his duties, in such form and amount and with such sureties as the Board of Directors may determine. The premiums for such bonds shall be paid by the Corporation. 2. Tenure. Each Director shall hold office until the next annual meeting of the stockholders and until his successor is elected and qualified or until he sooner dies, resigns, is removed or becomes disqualified. The President, the Treasurer and the Clerk shall each hold office until the first meeting of the Board of Directors following the next annual meeting of the stockholders and until his successor is elected or appointed or qualified, or until he dies, resigns, is removed or becomes disqualified; and all other officers shall hold office until the first meeting of the Board of Directors following the next annual meeting of the Stockholders unless a shorter term is specified in the vote electing or appointing them. Any Director or officer may resign by giving written notice of his resignation to the Chairman of the Board, President, Clerk or Secretary, or the Board of Directors at a meeting of the Board and such resignation shall become effective at the time specified therein. Any Director may at any time be removed with or without cause by the affirmative vote of the holders of a majority in interest of the capital stock issued and outstanding and entitled to vote; provided, that a Director of a class elected by a particular class of stockholders may be removed only by the affirmative vote of the holders of a majority in interest of the stock of such class. Any officer may at any time be removed with or without cause by vote of the Board of Directors. A Director or officer may be removed for cause only after a reasonable notice and opportunity to be heard before the body proposing to remove him. 3. Vacancies. Any vacancy in the office of Director of a given class may be filled by the stockholders at a meeting called for the purpose. Pending action by the stockholders, such vacancy may be filled by vote of the Board of Directors or by appointment by all of the Directors if less than a quorum shall remain in the office. Any vacancy in the position of any officer may be filled by the Board of Directors; and during the absence or inability to act of an officer, the Board of Directors may by vote appoint a person to perform the duties of such officer. ARTICLE III - Board of Directors 1. Powers. The Board of Directors may exercise all the powers of the corporation except such as are required by law or by the Articles of Organization or By-Laws to be otherwise exercised, and shall have the general direction, control and management of the property and business of the corporation. All property of the corporation, which shall be in the custody of the Board of Directors, shall be subject at all times to inspection by the President and the Treasurer or either of them. Unless otherwise provided by law, the Board of Directors shall have power to purchase and to lease, pledge, mortgage and sell such property (including the stock of this corporation) and to make such contracts and agreements as they deem advantageous, to fix the price to be paid for or in connection with any property or rights purchased, sold, or otherwise dealt with by the corporation, to borrow money, issue bonds, notes and other obligations of the corporation, and to secure payment thereof by the mortgage or pledge of all or any part of the property of the corporation. The Board of Directors may determine the compensation of Directors and the compensation and duties, in addition to those prescribed by the By-Laws, of all officers, agents and employees of the corporation. 2. Meetings. Meetings of the Directors need not be held in the state of incorporation. (a) Regular Meetings. Regular meetings of the Board of Directors may be held without call or notice at such places and at such times as the Directors may from time to time determine, provided that any Director who is absent when such determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without a call or notice at the same place as the annual meeting of stockholders, or the special meeting held in lieu thereof, following such meeting of stockholders. (b) Special Meetings. Special Meetings of the Board of Directors may be called by the Chairman of the Board, the President, the Clerk, the Treasurer or any Director. Notice of the time and place of all special meetings shall be given by the Secretary or the officer or Directors calling the meeting. Notice must be given orally, by telephone, by telegraph, or in writing, and such notice shall be sufficient if given in time to enable the Director to attend, or in any case if sent by mail or telegraph, at least three days before the meeting, addressed to a Director's usual or last known place of business or residence. No notice of any meeting of the Board of Directors need be given to any Director if such Director, by a writing (including, without limitation, by telegraph, telex, telecopy or cable) filed with the records of the meeting (and whether executed before or after such meeting), waives such notice, or if such Director attends the meeting without protesting prior thereto or at its commencement the lack of notice to him. 3. Quorum of Directors. At any meeting of the Board of Directors a majority of the number of Directors then constituting a full Board shall constitute a quorum, but a lesser number may adjourn any meeting from time to time without further notice. Unless otherwise provided by law or by the Articles of Organization or by the By-Laws, business may be transacted by vote of a majority of the Directors then present at any meeting at which there is a quorum. 4. Action Without a Meeting. Unless otherwise provided by law or by the Articles of Organization or by the By-Laws, any action required or permitted to be taken at any meeting of the Directors may be taken without a meeting if all the Directors consent to the action in writing and the written consents are filed with the records of the meetings of Directors. Such consents shall be treated for all purposes as a vote at a meeting. 5. Committees of Directors. The Board of Directors may, by vote of a majority of the number of Directors then constituting a full Board, elect from its membership an Executive Committee and such other committees as it may determine and delegate to any committee or committees some or all of its powers except those which, by law, the Articles of Organization or these By-Laws, it is prohibited from delegating. Except as the Directors may otherwise determine, any such committee may make rules for the conduct of its business, but unless otherwise provided by the Directors or in such rules, its business shall be conducted as nearly as may be in the manner as is provided by these By-Laws for the Directors. 6. Telephone Conference Meetings. The Board of Directors or any committee designated thereby may participate in the meeting of such Board or committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting. ARTICLE IV - Executive Offices 1. Chairman of the Board. The Chairman of the Board, if any, shall preside at all meetings of the Board of Directors, and shall have such authority and perform such duties as the Board of Directors may from time to time determine. 2. President. Except for meetings at which the Chairman of the Board, if any, presides in accordance with Section 1 of this Article IV, the President shall, if present, preside at all meetings of stockholders. He shall, subject to the control and direction of the Board of Directors, have general supervision and control over the business of the corporation, except as otherwise provided by the By-Laws; and he shall have and perform such other powers and duties as may be prescribed by the By-Laws or from time to time be determined by the Board of Directors. 3. Vice Presidents. The Vice Presidents, in the order of their election, or in such other order as the Board of Directors may determine by specific vote or by title, shall have and perform the powers and duties of the President (or such of them as the Board of Directors may determine) whenever the President is absent or unable to act. The Vice Presidents shall also have such other powers and duties as may from time to time be determined by the Board of Directors. 4. Treasurer and Assistant Treasurers. The Treasurer shall, subject to the control and direction of the Board of Directors, have and perform such powers and duties as may be prescribed in the By-Laws or from time to time be determined by the Board of Directors. He shall have custody of all moneys, obligations, contracts and other valuable documents of the corporation except his own bond and the record books, and shall collect all moneys from time to time due and owing to the corporation and disburse the same pursuant to the contracts and obligations of the corporation or the order of the Board of Directors or Stockholders. He shall have custody of the stock and transfer books of the corporation, unless and until a transfer agent is appointed, and shall keep accurate books of account of all the transactions of the corporation. All property of the corporation in his custody shall be subject at all times to the inspection and control of the Board of Directors. Unless otherwise voted by the Board of Directors, each Assistant Treasurer shall have and perform the powers and duties of the Treasurer whenever the Treasurer is absent or unable to act, and may at any time exercise such of the powers of the Treasurer, and such other powers and duties, as may from time to time be determined by the Board of Directors. 5. Clerk and Assistant Clerks. The Clerk shall be a resident of Massachusetts unless the corporation has a resident agent appointed for the purpose of service of process. He shall have and perform the powers and duties prescribed in the By-Laws, and such other powers and duties as may from time to time be determined by the Board of Directors. He shall attend all meetings of the stockholders and shall record upon the record book of the corporation all votes of the corporation and minutes of the proceedings at such meetings. He shall have custody of the record books of the corporation. Any Assistant Clerk shall have such powers as the Directors may from time to time designate. In the absence of the Clerk from any meeting of stockholders, an Assistant Clerk, if one be elected, otherwise a Temporary Clerk designated by the person presiding at the meeting, shall perform the duties of the Clerk. 6. Secretary. The Board of Directors may elect a Secretary, but if no Secretary is elected, the Clerk (or, in the absence of the Clerk, any Assistant Clerk) shall be the Secretary. The Secretary shall attend all meetings of the Directors and shall record all votes of the Board of Directors and minutes of the proceedings at such meetings. He shall notify the Directors of their meetings, and shall have and perform such other powers and duties as may from time to time be determined by the Board of Directors. If a Secretary is elected but is absent from any such meeting, the Clerk (or any Assistant Clerk) may perform the duties of the Secretary; otherwise, a Temporary Secretary may be appointed by the meeting. ARTICLE V - Capital Stock 1. Certificates of Stock. Each stockholder shall be entitled to a certificate of the capital stock of the corporation owned by him. All certificates for shares of stock of the corporation shall state the number and class of shares evidenced thereby (and designate the series, if any), shall be signed by the President or a Vice President and either the Treasurer or an Assistant Treasurer, may (but need not) bear the seal of the corporation and shall contain such further statements as shall be required by law. The Board of Directors may determine the form of certificates of stock except insofar as prescribed by law or by the By-Laws, and may provide for the use of facsimile signatures thereon to the extent permitted by law. If the corporation is authorized to issue more than one class or series of stock, every stock certificate issued while it is so authorized shall set forth on the face or back thereof either - (a) the full text of the preferences, voting powers, qualifications and special and relative rights of the shares of each class and series, if any, authorized to be issued as set forth in the Articles of Organization; or (b) a statement of the existence of such preferences, powers, qualifications and rights, and a statement that the Corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. 2. Transfers. The transfer of all shares of stock in the corporation shall be subject to the restrictions, if any, imposed by the Articles of Organization, the By-Laws or any agreement to which the corporation is a party. Every certificate for shares which are subject to any such restrictions on transfer shall have the restrictions noted conspicuously on the certificates and shall also set forth upon the face or back thereof either the full text of the restriction or a statement of the existence of such restriction and a statement that the corporation will furnish a copy thereof to the holder of such certificate upon written request and without charge. Subject to any such restrictions, title to a certificate of stock and to the shares represented thereby shall be transferable on the books of the corporation (except when closed as provided by the By-Laws) upon surrender of the certificates therefor duly endorsed, or accompanied by a separate document containing an assignment of the certificate or a power of attorney to sell, assign or transfer the same, or the share represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby, with all such endorsements or signatures verified if required by the corporation; but the person registered on the books of the corporation as the owner of the shares shall have the exclusive right to receive dividends thereon and to vote thereon as such owner, shall be held liable for such calls and assessments as may lawfully be made thereon, and except only as may be required by law, may in all respects be treated by the corporation as the exclusive owner thereof. It shall be the duty of each stockholder to notify the corporation of his post office address. 3. Fixing Record Date. The Board of Directors may fix in advance a time of not more than sixty days preceding the date of any meeting of stockholders or the date for payment of any dividend or the making of any distribution to stockholders or the last day on which the consent or dissent of stockholders may be effectively expressed for any purpose, as the record date for determining the stockholders having the right to notice of and to vote at such meeting and any adjournment thereof, or the right to receive such dividend or distribution, or the right to give such consent or dissent, and in such case, only stockholders of record on such record date shall have such right, notwithstanding any transfer of stock on the books of the corporation after the record date; or without fixing such record date the Board of Directors may, for any such purposes, close the transfer books for all or any part of such sixty-day period. If no record date is fixed and the transfer books are not closed - (a) the record date for determining stockholders having the right to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given; and (b) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors acts with respect thereto. 4. Lost Certificates. In case any certificate of stock of the corporation shall be lost or destroyed, a new certificate may be issued in place thereof on reasonable evidence of such loss or destruction, and upon the giving of such indemnity as the Board of Directors may require for the protection of the corporation or any transfer agent or registrar. In case any certificate shall be mutilated, a new certificate may be issued in place thereof upon such terms as the Board of Directors may prescribe. 5. Issue of Stock. Unless otherwise voted by the incorporators or stockholders, the whole or any part of any unissued balance of the authorized capital stock of the corporation or the whole or any part of any capital stock of the corporation held in its treasury may be issued or disposed of by vote of the Board of Directors in such manner, for such consideration and on such terms as the Board of Directors may determine. 6. Dividends. Subject to any applicable provisions of the Articles of Organization and pursuant to law, dividends upon the capital stock of the corporation may be declared by the Board of Directors at any regular or special meeting upon the affirmative vote of three-fourths of the Directors then in office. Dividends may be paid in cash, in property or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Board of Directors may from time to time, in the absolute discretion of the Board, think proper as a reserve fund to meet contingencies, for equalizing dividends, for repairing or maintaining any property of the corporation, for working capital or for such other purposes as the Board of Directors shall think conducive to the interests of the corporation. ARTICLE VI - Miscellaneous Provisions 1. Fiscal Year. The fiscal year of the corporation shall end on the last day of December. 2. Seal. The seal of the corporation shall bear its name, the word "Massachusetts" and the year 1985 (the year of its incorporation), and may bear such other device or inscription as the Board of Directors may determine. 3. Execution of Instruments. All deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other obligations for the payment of money made, accepted or endorsed by the corporation shall be executed on behalf of the corporation by such person or persons, as may be authorized from time to time by vote of the Board of Directors. 4. Contributions. The Board of Directors shall have authority to make donations from the funds of the corporation, in such amounts as the Board of Directors may determine to be reasonable and irrespective of corporate benefit, for the public welfare or for community fund, hospital, charitable, religious, educational, scientific, civic or similar purposes, and in time of war or other natural emergency in aid thereof. 5. Evidence of Authority. A certificate by the Clerk, an Assistant Clerk or the Secretary, or a Temporary Clerk or Temporary Secretary, as to any action taken by the stockholders, Board of Directors, any Committee of the Board of Directors or any officer or representative of the corporation shall, as to all persons who rely thereon in good faith, be conclusive evidence of such action. The exercise of any power which, by law or under these By-Laws or under any vote of the stockholders or of the Board of Directors, may be exercised in case of absence or any other contingency, shall bind the corporation in favor of anyone relying thereon in good faith, whether or not the absence or contingency existed. 6. Indemnification of Officers and Directors. The corporation shall indemnify and hold harmless each person who heretofore has served, is currently serving or hereafter serves: (a) as an officer or Director of the corporation; (b) at the request of the corporation, as an officer or Director of another organization; or (c) at the request of the corporation, in any capacity with respect to an employee benefit plan; from and against any and all claims and liabilities to which such person may be or become subject by reason of such service (including, without limitation, by reason of such person's alleged acts or omissions in the course of such service), and shall indemnify and reimburse each such person against and for any and all legal and other expenses reasonably incurred by such person in connection with any such claims and liabilities, actual or threatened, whether or not at or prior to the time when so indemnified, held harmless and reimbursed such person has ceased to serve in such capacity, except with respect to any matter as to which such person shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interest of the corporation (or, to the extent that such mattet relates to service with respect to an employee benefit plan, in the best interests of the participants or beneficiaries of such plan); provided, however, that prior to such final adjudication the corporation may compromise and settle any such claims and liabilities and pay such expenses, if such settlement or payment or both appears, in the judgment of a majority of those members of the Board of Directors who are not involved in such matters, to be in the best interest of the corporation (or of the participants or beneficiaries of any such plan, as the case may be) as evidenced by a resolution to that effect adopted after receipt by the corporation of a written opinion of counsel for the corporation, that, based on the facts available to such counsel, such person has not been guilty of acting in a manner that would prohibit indemnification. Such indemnification may include payment by the corporation of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he shall be adjudicated to be not entitled to indemnification under this Section 6, which undertaking may be accepted without reference to the financial ability of such person to make repayment. The right of indemnification herein provided shall be in addition to and not exclusive of any other rights to which any officer or Director of the corporation, or any such persons who serve at its request as aforesaid, may otherwise be lawfully entitled. As used in this Section 6, the terms "officer" and "Director" include their respective heirs, executors and administrators. 7. Definitions. All references in the By-Laws to the following terms shall have the following meanings unless specifically otherwise provided: By-Laws - These By-Laws, as altered or amended from time to time. Articles of Organization - The Articles of Organization of the corporation recorded with the office of the Secretary of State, as may be amended from time to time. Number of Directors then Constituting a Full Board - The number of Directors last fixed by the incorporators or stockholders pursuant to Section 1 of Article II of the By-Laws. Annual Meeting of Stockholders - Either the annual meeting of the stockholders held on the date fixed therefor, or if it is not held on such fixed date, a special meeting held in place thereof. In addition, whenever the masculine gender is used, it shall include the feminine and the neuter wherever appropriate. ARTICLE VII - Amendments These By-Laws may be altered, amended or repealed, in whole or in part, at any annual or special meeting by vote of the holders of a majority in interest of all stock issued and outstanding and entitled to vote. No change in the date of the annual meeting may be made within sixty (60) days before the date fixed in these By-Laws for such meeting. The nature or substance of the proposed alterations, amendment or repeal shall be stated in the notice of the meeting. These By-Laws may also be amended from time to time by vote of the Board of Directors of the corporation, with the exception of any provision relating to rights, powers or duties of the stockholders of the corporation or any provision which by law, the Articles of Organization or these By-Laws requires action by the stockholders. A true copy. ATTEST: --------------------------------- Clerk 3059F Action by Unanimous Consent in Writing of the Board of Directors November 1, 1990 The undersigned, constituting the entire Board of Directors of the corporations listed on Exhibits A, B, C and D attached hereto (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, do hereby severally and collectively consent to the following action by the Corporations: RESOLVED, that effective as of this date, the appropriate sections of the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide as follows: "The officers of the corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board and Chief Executive Officer, one or more Presidents and Chief Operating Officers, a Vice President, a Secretary and a Treasurer. The Board may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended to provide for a section pertaining to the office of Chairman of the Board and Chief Executive Officer, which section shall be and read in its entirety as follows: "THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER The Chairman of the Board and Chief Executive Officer shall preside at all meetings of the Board and of the stockholders and shall be the chief executive officer of the Corporation. Subject to the control of the Board, he shall have general supervision over the business of the Corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, the by-laws of the corporations listed on Exhibits A and B attached hereto be and hereby are amended so that the section pertaining to the President shall be and read in its entirety as follows: "THE PRESIDENT AND CHIEF OPERATING OFFICER The President and Chief Operating Officer shall, subject to the control of the Board, have general supervision over the operations of the Corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the Board assigns to him." and it is further RESOLVED, that effective as of this date, R. Richard Ablon be and hereby is elected Chairman of the Board and Chief Executive Officer of the corporations listed on Exhibits A and B hereto; and it is further RESOLVED, that effective as of this date, Scott G. Mackin and Bruce W. Stone be and hereby are elected Co-Presidents and Co--Chief Operating Officers of the corporations listed on Exhibits A, B and C hereto; and it is further RESOLVED, that effective as of this date, Patricia M. Collins be and hereby is elected Secretary of the corporations listed on Exhibits A and C hereto; and it is further RESOLVED, that effective as of this date, Louis D. Montresor be and hereby is elected Secretary of the corporations listed on Exhibit B hereto; and it is further RESOLVED, that effective as of this date, J.L. Effinger be and hereby is elected Assistant Secretary of the corporations listed on Exhibit A, B and D hereto; and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. /s/ Richard Ablon /s/ Scott G. Mackin - ------------------ -------------------- Richard Ablon Scott G. Mackin /s/ Bruce W. Stone ------------------- Bruce W. Stone EXHIBIT A Ogden Land Management, Inc. Ogden Land Management of Warren, Inc. Ogden Projects of Haverhill, Inc. Ogden Projects of Rutland, Inc. Ogden Wallingford Associates, Inc. OPW Associates, Inc. Ogden Marion Land Corp. Ogden Martin Systems of Bristol, Inc. Ogden Martin Systems of Eastern/Central Connecticut, Inc. Ogden Martin Systems of Fairfax, Inc. Ogden Martin Systems of Haverhill, Inc. Haverhill Power, Inc. LMI, Inc. Ogden Omega Lease, Inc. Ogden Haverhill Properties, Inc. Ogden Martin Systems of Huntington, Inc. Ogden Martin Systems of Huntington Resource Recovery One Corp. Ogden Martin Systems of Huntington Resource Recovery Two Corp. Ogden Martin Systems of Huntington Resource Recovery Three Corp. Ogden Martin Systems at Huntington Resource Recovery Four Corp. Ogden Martin Systems of Huntington Resource Recovery Five Corp. Ogden Martin Systems of Huntsville, Inc. Ogden Martin Systems of Kent, Inc. Ogden Martin Systems of Knox, Inc. Ogden Martin Systems of L.A., Inc. Ogden Martin Systems of Marion, Inc. Ogden Martin Systems of Monmouth, Inc. Ogden Martin Systems of Montgomery, Inc. Ogden Martin Systems of Oakland, Inc. Ogden Martin Systems of Oyster Bay, Inc. Ogden Martin Systems of Pennsauken, Inc. Ogden Martin Systems of Snohomish, Inc. Ogden Martin Systems of Tulsa, Inc. Ogden Recycling Systems, Inc. Ogden Recycling Systems of Fairfax, Inc. Ogden Recycling Systems of Indianapolis, Inc. EXHIBIT B Clarion Disposal Services, Inc. Ogden Projects of Campo, Inc. Ogden Projects of Jacksonville, Inc. Ogden Martin Systems of Alexandria/Arlington, Inc. OMS Equity of Alexandria/Arlington, Inc. Ogden Martin Systems of Atlantic, Inc. Ogden Martin Systems of Babylon, Inc. Ogden Martin Systems of Berks, Inc. Ogden Martin Systems of Ford Heights, Inc. Ogden Martin Systems of Hillsborough, Inc. Ogden Martin Systems of Indianapolis, Inc. NRG/Recovery Group, Inc. Ogden Martin Systems of Lancaster, Inc. Ogden Martin Systems of Lee, Inc. Ogden Martin Systems of Morris, Inc. Ogden Martin Systems of Onondaga, Inc. Ogden Martin Systems of Pasco, Inc. Ogden Martin Systems of Rhode Island, Inc. Ogden Martin Systems of San Bernardino, Inc. Ogden Martin Systems of San Diego, Inc. Ogden Martin Systems of Sharyn, Inc. Ogden Martin Systems of Stanislaus, Inc. OMS Equity of Stanislaus, Inc. EXHIBIT C Ogden Martin Systems of Hudson, Inc. Ogden Martin Systems of Union, Inc. EXHIBIT D Ogden Acquisition Company Ogden Environmental Services, Inc. Ogden Environmental Services of Houston, Inc. BY-LAWS AMENDMENT HAVERHILL POWER, INC. LMI, INC. OGDEN OMEGA LEASE, INC. Action by Unanimous Consent in Writing of of Sole Shareholder in Lieu of the 1990 Annual Meeting May 25, 1990 The undersigned, constituting the holder of all the outstanding shares of Haverhill Power, Inc., LM1, Inc., and Ogden Omega Lease, Inc. (collectively, the "Corporations"), by unanimous consent in writing without the formality of convening a meeting, pursuant to the authority of the appropriate laws of the respective states of incorporation of the Corporations, does hereby consent to the following actions by the Corporations: RESOLVED, that effective as of this date, the appropriate section of the by-laws of the Corporations be amended to change the number of directors of each corporation to "three"; and it is further RESOLVED, that effective as of this date, the following persons be and are hereby elected Directors of the Corporations to serve until the next annual meeting of shareholders or until their successors are duly elected and qualified to serve: Ralph E. Ablon Scott G. Mackin David L. Sokol and it is further RESOLVED, that the officers of the Corporations and each of them be and they hereby are authorized to execute and deliver all documents and take all actions which in their opinion are necessary or desirable to expand or implement the foregoing resolutions. OGDEN MARTIN SYSTEMS OF HAVERHILL, INC. By: /s/ Scott G. Mackin -------------------------------------------- Scott G. Mackin First Executive Vice President EX-99.T3B90 168 exhibit_t3b-90.txt Exhibit T3B-90 MICHIGAN WASTE ENERGY, INC. ***** BY-LAWS ***** ARTICLE I OFFICES Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. All meetings of the stockholders for the election of directors shall be held in Fairfield, New Jersey, at such place as may be fixed from time to time by the board of directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the board of directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2. Annual meetings of stockholders shall be held on such date and at such time as shall be designated from time to time by the board of directors, if not a legal holiday, at which they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less 1 Exhibit T3B-90 than ten nor more than sixty days before the date of the meeting. Section 4. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 7. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. Section 8. A majority of the stockholders, holding stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction 2 Exhibit T3B-90 of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. Section 10. Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. Section 11. Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the 3 Exhibit T3B-90 taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE III DIRECTORS Section 1. The number of directors which shall constitute the whole board shall be not less than three nor more than five. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors or by the stockholders at the annual meeting. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3. The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the 4 Exhibit T3B-90 certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. MEETINGS OF THE BOARD OF DIRECTORS Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special, meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors. Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. Section 7. Special meetings of the board may be called by the president on ten days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. Section 8. At all meetings of the board a majority of the directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting 5 Exhibit T3B-90 from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 9. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. Section 10. Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. COMMITTEES OF DIRECTORS Section 11. The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) fix any of the preferences or rights of such shares relating to 6 Exhibit T3B-90 dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation) adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Section 12. Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. COMPENSATION OF DIRECTORS Section 13. Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. REMOVAL OF DIRECTORS Section 14. Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. 7 Exhibit T3B-90 ARTICLE IV NOTICES Section 1. Whenever, under the provisions of the statutes or of the certificate of incorporation or of these bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the board of directors and shall be a chairman of the board and chief executive officer, one or more presidents and chief operating officers, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant treasurers. Section 2. The board of directors, at its first meeting after each annual meeting of stockholders, shall choose a chairman of the board and chief executive officer, one or more presidents and chief operating officers, one or more vice-presidents, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board of directors may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers 8 Exhibit T3B-90 and perform such duties as shall be determined from time to time by the board of directors. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. THE CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Section 6. The chairman of the board and chief executive officer shall preside at all meetings of the board and of the stockholders and shall be the chief executive officer of the corporation. Subject to the control of the board, he shall have general supervision over the business of the corporation and shall have such powers and duties as chief executive officers of corporations usually have or as the board assigns to him. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE PRESIDENT AND CHIEF OPERATING OFFICER Section 8. The president and chief operating officer shall, subject to the control of the board, have general supervision over the operations of the corporation and shall have such other powers and duties as chief operating officers of corporations usually have or as the board assigns to him. Section 9. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 9 Exhibit T3B-90 THE VICE-PRESIDENTS Section 10. The vice-president, or if there shall be more than one, the vice-presidents in the order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 11. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. Section 12. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 13. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the 10 Exhibit T3B-90 corporation in such depositories as may be designated by the board of directors. Section 14. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 15. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 16. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI CERTIFICATES FOR SHARES Section 1. The shares of the corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation. Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation shall send to 11 Exhibit T3B-90 the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) or a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. LOST CERTIFICATES Section 3. The board of directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. TRANSFER OF STOCK Section 4. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of 12 Exhibit T3B-90 the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the corporation. FIXING RECORD DATE Section 5. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting: provided, however, that the board of directors may fix a new record date for the adjourned meeting. REGISTERED STOCKHOLDERS Section 6. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. 13 Exhibit T3B-90 ARTICLE VII GENERAL PROVISIONS DIVIDENDS Section 1. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. Section 2. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. CHECKS Section 4. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. FISCAL YEAR Section 5. The fiscal year of the corporation shall be fixed by resolution of the board of directors. 14 Exhibit T3B-90 SEAL Section 6. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. INDEMNIFICATION Section 7. The corporation shall indemnify its officers, directors, employees and agents to the extent permitted by the General Corporation Law of Delaware. ARTICLE VIII AMENDMENTS Section 1. These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. 15 EX-99.T3C1 169 exhibit_t3c-1.txt Exhibit T3C-1 ------------- THE 8.25% SENIOR SECURED NOTES DUE 2011 WILL BE INITIALLY ISSUED IN GLOBAL FORM AND HELD BY DTC. PLAN PARTICIPANTS ENTITLED TO RECEIVE NOTES WILL BE REQUIRED TO HOLD THEIR INTERESTS DIRECTLY OR INDIRECTLY THROUGH DTC PARTICIPANTS EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN THIS INDENTURE. COVANTA ENERGY CORPORATION and each of the Guarantors named herein 8.25% SENIOR SECURED NOTES DUE 2011 ------------------------------- INDENTURE Dated as of March [___], 2004 ------------------------------- ------------------------------- U.S. BANK NATIONAL ASSOCIATION as Trustee ------------------------------- CROSS-REFERENCE TABLE* Trust Indenture Act Section Indenture Section - ----------- ----------------- 310(a)(1)......................................................7.10 (a)(2)....................................................7.10 (a)(3)....................................................N.A. (a)(4)....................................................N.A. (a)(5)..............................................7.08, 7.10 (b)..........................................7.08, 7.10, 13.02 (c).......................................................N.A. 311(a).........................................................7.11 (b).......................................................7.11 (c).......................................................N.A. 312(a).........................................................2.05 (b)......................................................13.03 (c)......................................................13.03 313(a).........................................................7.06 (b)(1)....................................................N.A. (b)(2)....................................................7.06 (c).......................................................7.06 (d).......................................................7.06 314(a)...................................................4.03, 4.04 (b)......................................................10.02 (c)(1).............................................7.02, 13.04 (c)(2).............................................7.02, 13.05 (c)(3)....................................................N.A. (d)........................................10.03, 10.04, 10.05 (e)......................................................13.05 (f).......................................................N.A. 315(a)......................................................7.01(b) (b).......................................................7.05 (c).......................................................7.01 (d)..............................................6.05, 7.01(c) (e).......................................................6.11 316(a) (last sentence)..........................................2.9 (a)(1)(A).................................................6.05 (a)(1)(B).................................................6.04 (a)(2)....................................................N.A. (b).......................................................6.07 (c).......................................................9.04 317(a)(1)......................................................6.08 (a)(2)....................................................6.09 (b).......................................................2.04 318(a)........................................................13.01 (b).......................................................N.A. (c)......................................................13.01 - ---------- N.A. means not applicable *This Cross Reference Table is not part of the Indenture. Page ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE............................................1 Section 1.01 Definitions.......................................................................1 Section 1.02 Other Definitions................................................................30 Section 1.03 Incorporation by Reference of Trust Indenture Act................................30 Section 1.04 Rules of Construction............................................................31 ARTICLE 2. THE NOTES............................................................................31 Section 2.01 Form and Dating..................................................................31 Section 2.02 Execution and Authentication.....................................................32 Section 2.03 Registrar and Paying Agent.......................................................33 Section 2.04 Paying Agent to Hold Money in Trust..............................................33 Section 2.05 Holder Lists.....................................................................33 Section 2.06 Transfer and Exchange............................................................33 Section 2.07 Replacement Notes................................................................38 Section 2.08 Outstanding Notes................................................................38 Section 2.09 Treasury Notes...................................................................38 Section 2.10 Temporary Notes..................................................................38 Section 2.11 Cancellation.....................................................................39 Section 2.12 Defaulted Interest...............................................................39 ARTICLE 3. REDEMPTION AND PREPAYMENT............................................................39 Section 3.01 Notices to Trustee...............................................................39 Section 3.02 Selection of Notes to Be Redeemed or Purchased...................................40 Section 3.03 Notice of Redemption.............................................................40 Section 3.04 Effect of Notice of Redemption...................................................41 Section 3.05 Deposit of Redemption or Purchase Price..........................................41 Section 3.06 Notes Redeemed or Purchased in Part..............................................42 Section 3.07 Optional Redemption..............................................................42 Section 3.08 Mandatory Redemption.............................................................42 Section 3.09 Offer to Purchase by Application of Excess Proceeds.........................................................................42 ARTICLE 4. COVENANTS............................................................................44 Section 4.01 Payment of Notes.................................................................44 Section 4.02 Maintenance of Office or Agency..................................................45 Section 4.03 Reports..........................................................................45 Section 4.04 Compliance Certificate...........................................................46 Section 4.05 Taxes............................................................................47 Section 4.06 Stay, Extension and Usury Laws...................................................47 Section 4.07 Restricted Payments..............................................................47 Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.....................................................................51 Section 4.09 Restrictions on Indebtedness.....................................................53 Section 4.10 Asset Sales......................................................................57 Section 4.11 Transactions with Affiliates.....................................................59 Section 4.12 Liens............................................................................61 Section 4.13 Business Activities..............................................................62 Section 4.14 Corporate Existence..............................................................62 Section 4.15 Offer to Repurchase Upon Change of Control.......................................62 Section 4.16 Payments for Consent.............................................................64 Section 4.17 Additional Subsidiary Guarantees and Liens.......................................64 Section 4.18 Designation of Restricted and Unrestricted Subsidiaries..........................65 Section 4.19 Limitation on Sale and Leaseback Transactions....................................65 Section 4.20 Limitation on Performance Guarantees.............................................65 Section 4.21 Payment of Additional Interest...................................................66 ARTICLE 5. SUCCESSORS...........................................................................66 Section 5.01 Merger, Consolidation, or Sale of Assets.........................................66 Section 5.02 Successor Corporation Substituted................................................67 ARTICLE 6. DEFAULTS AND REMEDIES................................................................68 Section 6.01 Events of Default................................................................68 Section 6.02 Acceleration.....................................................................70 Section 6.03 Other Remedies...................................................................71 Section 6.04 Waiver of Past Defaults..........................................................71 Section 6.05 Control by Majority..............................................................71 Section 6.06 Limitation on Suits..............................................................71 Section 6.07 Rights of Holders of Notes to Receive Payment....................................72 Section 6.08 Collection Suit by Trustee.......................................................72 Section 6.09 Trustee May File Proofs of Claim.................................................72 Section 6.10 Priorities.......................................................................73 Section 6.11 Undertaking for Costs............................................................73 ARTICLE 7. TRUSTEE..............................................................................74 Section 7.01 Duties of Trustee................................................................74 Section 7.02 Rights of Trustee................................................................75 Section 7.03 Individual Rights of Trustee.....................................................75 Section 7.04 Trustee's Disclaimer.............................................................75 Section 7.05 Notice of Defaults...............................................................76 Section 7.06 Reports by Trustee to Holders....................................................76 Section 7.07 Compensation and Indemnity.......................................................76 Section 7.08 Replacement of Trustee...........................................................77 Section 7.09 Successor Trustee by Merger, etc.................................................78 Section 7.10 Eligibility; Disqualification....................................................79 Section 7.11 Preferential Collection of Claims Against Company................................79 ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.............................................79 Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.........................79 Section 8.02 Legal Defeasance and Discharge...................................................79 Section 8.03 Covenant Defeasance..............................................................80 Section 8.04 Conditions to Legal or Covenant Defeasance.......................................80 Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.........................................................82 Section 8.06 Repayment to Company.............................................................82 Section 8.07 Reinstatement....................................................................83 ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER.....................................................83 Section 9.01 Without Consent of Holders of Notes..............................................83 Section 9.02 With Consent of Holders of Notes.................................................84 Section 9.03 Compliance with Trust Indenture Act..............................................85 Section 9.04 Revocation and Effect of Consents................................................85 Section 9.05 Notation on or Exchange of Notes.................................................86 Section 9.06 Trustee to Sign Amendments, etc..................................................86 ARTICLE 10. COLLATERAL AND SECURITY..............................................................86 Section 10.01 Security Documents...............................................................86 Section 10.02 Recording and Opinions...........................................................87 Section 10.03 Release of Collateral/Additional Liens...........................................87 Section 10.04 Certificates and Opinions of Counsel.............................................90 Section 10.05 Certificates of the Trustee......................................................90 Section 10.06 Authorization of Actions to be Taken by the Trustee Under the Security Documents........................................................................91 Section 10.07 Authorization of Receipt of Funds by the Trustee Under the Security Documents........................................................................91 Section 10.08 Termination of Security Interest.................................................91 ARTICLE 11. NOTE GUARANTEES......................................................................92 Section 11.01 Guarantee........................................................................92 Section 11.02 Limitation on Guarantor Liability................................................93 Section 11.03 Execution and Delivery of Subsidiary Guarantees..................................93 Section 11.04 Guarantors May Consolidate, etc., on Certain Terms...............................94 Section 11.05 Releases Following Sale of Assets................................................95 Section 11.06 Release Following Designation as an Unrestricted Subsidiary......................95 ARTICLE 12. SATISFACTION AND DISCHARGE...........................................................95 Section 12.01 Satisfaction and Discharge.......................................................95 Section 12.02 Application of Trust Money.......................................................96 ARTICLE 13. MISCELLANEOUS........................................................................97 Section 13.01 Trust Indenture Act Controls.....................................................97 Section 13.02 Notices..........................................................................97 Section 13.03 Communication by Holders of Notes with Other Holders of Notes....................98 Section 13.04 Certificate and Opinion as to Conditions Precedent...............................98 Section 13.05 Statements Required in Certificate or Opinion....................................98 Section 13.06 Rules by Trustee and Agents......................................................99 Section 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders.........99 Section 13.08 Governing Law....................................................................99 Section 13.09 No Adverse Interpretation of Other Agreements....................................99 Section 13.10 Successors.......................................................................99 Section 13.11 Severability....................................................................100 Section 13.12 Counterpart Originals...........................................................100 Section 13.13 Table of Contents, Headings, etc................................................100 Schedule I Schedule of Guarantors..........................................................I-1 Exhibit A Form of Notes...................................................................A-1 Exhibit B Form of Notation of Guarantee...................................................B-1 Exhibit C Form of Supplemental Indenture to be Delivered by Subsequent Guarantors.........C-1
INDENTURE dated as of March [___], 2004 among Covanta Energy Corporation, a Delaware corporation (the "Company"), the Guarantors (as defined) and U.S. Bank National Association, as trustee (the "Trustee"). The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders (as defined) of the 8.25% Senior Secured Notes due 2011 (the "Notes"): ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.01 Definitions. "Accreted Value" means, with respect to each $1,000 principal amount at Stated Maturity of Notes, (i) as of the Issue Date, the Initial Principal Amount; (ii) as of the Stated Maturity of the principal of the Notes, $1,000.00 and (iii) as of any other date of determination, the Initial Principal Amount plus an accretion on such Initial Principal Amount equal to an amount that causes the yield to maturity on such Note (taking into account the amount and timing of all payments of stated interest at the Stated Maturity of such payments, other than additional interest payable pursuant to Section 4.21, if any) to equal 10.480002% per annum, calculated on a semi-annual bond equivalent basis using a 360-day year comprised of twelve 30-day months and rounded to the nearest $0.01. "Acquired Debt" means, with respect to any specified Person: (1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such specified Person; and (2) Indebtedness secured by a Lien encumbering any asset acquired or owned by such specified Person. "Adjusted EBITDA" means, for any period, for the Company and its Consolidated Subsidiaries (i) without duplication, the aggregate amount derived by combining the amounts for such period of (a) "Operating income (loss)", plus (b) Net Depreciation and Amortization Expense, plus (c) "Amortization of premium and discount, net", plus (d) "Unbilled receivables", to the extent associated with accretion accounting for Limited Recourse Debt relating to Projects of the Company and its Subsidiaries, minus (e) "Equity in income from unconsolidated investments", minus (ii) without duplication, the aggregate amount derived by combining the amounts (each expressed as a positive number) for such period of (a) "Payment of debt", to the extent consisting of principal payments on Limited Recourse Debt relating to Projects of the Company and its Subsidiaries, plus (b) "Minority interests", plus (c) the change in Accreted Value of the Notes, as each such line item referred to in clauses (i)(a), (i)(e) and (ii)(b) is reflected in the Company's consolidated statement of income prepared in conformity with GAAP and as each such line item referred to in clauses (i)(c), (i)(d) and (ii) (a) is reflected in the Company's consolidated statement of cash flows prepared in conformity with GAAP, in each case reported in a manner consistent with the Company's reporting of such amount in its last quarterly or annual report (as the case may be) on Form 10-Q or Form 10-K, respectively, filed with the Commission prior to the Issue Date, whether such line items are so titled or otherwise titled; provided, however, that, with respect to any such period ending during 2008, each of the line items referred to above shall be calculated as if the terms of the service agreement of the Company and its Subsidiaries relating to the Alexandria Project in effect for fiscal year 2007 continued in effect during 2008, without giving effect to any negative impact on Adjusted EBITDA from the terms of any extension in 2008 of such service agreement. "Affiliate" of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Agent" means any Registrar, co-registrar, Paying Agent or additional paying agent. "Applicable Procedures" means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange. "Approved DHC Investor" means any Person that acquires shares of common stock of DHC pursuant to a transaction determined by at least a majority of the members of the board of directors of DHC (who are not representatives, nominees or Affiliates of such Person) to be in the best interests of DHC and its stockholders. "Asset Sale" means: (1) the sale, lease, conveyance or other disposition of any assets, property or rights (other than the sale of Equity Interests of the Company by the Company); provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole shall be governed by Section 4.15 or Section 5.01 and not by Section 4.10; and (2) the issuance of Equity Interests by any Restricted Subsidiary of the Company or the sale of Equity Interests in any Restricted Subsidiary of the Company. Notwithstanding the preceding, none of the following items shall be deemed to be an Asset Sale: (1) any single transaction or series of related transactions that involves assets, property or rights or the issuance of Equity Interests having a fair market value, or yielding Net Proceeds, of less than $10.0 million; (2) any transfer of assets, property or rights by the Company to a Restricted Subsidiary of the Company or by a Restricted Subsidiary of the Company to the Company or another Restricted Subsidiary of the Company; (3) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or a Restricted Subsidiary of the Company; (4) the sale, lease, sublease or assignment of equipment, inventory, accounts receivable or other assets, property or rights in the ordinary course of business; (5) the disposition of equipment no longer used or useful in the business of the Company or any of its Restricted Subsidiaries; (6) a Sale/Leaseback Transaction with respect to any assets within 90 days of the acquisition of such assets which complies with the terms of this Indenture; (7) the sale or other disposition of Cash Equivalents; (8) the grant of any license of patents or trademarks or registrations therefor and other similar intellectual property in the ordinary course of business; (9) the granting of any Permitted Lien (or the foreclosure thereon); (10) the surrender or waiver of contract rights or the settlement, release or surrender of a contract, tort or other litigation claim in the ordinary course of business; (11) any sale of Indebtedness or other securities of an Unrestricted Subsidiary of the Company; (12) a Restricted Payment permitted to be made under Section 4.07 or a Permitted Investment; or (13) any issuance of employee stock options or stock awards pursuant to benefit plans in existence on the Issue Date. "Attributable Debt" in respect of a Sale/Leaseback Transaction means, as at the time of determination, the present value (discounted at the interest rate implicit in such transaction, determined in accordance with GAAP) of the total obligations of the lessee for net rental payments during the remaining term of the lease included in such Sale/Leaseback Transaction (including any period for which such lease has been extended or may be, at the option of the lessor, extended). "Bank Indebtedness" means any and all amounts payable under or in respect of the Credit Agreements and any Permitted Refinancing Indebtedness with respect thereto, as amended from time to time, including principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Guarantor whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees and all other amounts payable thereunder or in respect thereof. "Bankruptcy Court" means the United States Bankruptcy Court for the Southern District of New York [and any other court properly exercising jurisdiction over any relevant case under Chapter 11 of the Bankruptcy Law.] "Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state law for the relief of debtors. "Bankrupt Subsidiary" means any of Covanta Warren Energy Resource Co. LP, a Delaware limited partnership, Covanta Lake, Inc., a Florida corporation, [Covanta Babylon, Inc., a New York corporation,] Covanta Tampa Construction, Inc., a Delaware corporation or Covanta Tampa Bay, Inc., a Florida corporation, in each case so long as such Person remains subject to the Chapter 11 Cases before the Bankruptcy Court. "Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular "person" (as that term is used in Section 13(d)(3) of the Exchange Act), such "person" shall be deemed to have beneficial ownership of all securities that such "person" has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms "Beneficially Own" and "Beneficially Owned" have corresponding meanings. "Board of Directors" means the Board of Directors of the Company. "Business Day" means any day other than a Legal Holiday. "Capital Lease Obligation" means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP. "Capital Stock" means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. "Cash Equivalents" means: (1) United States dollars; (2) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government having maturities of not more than one year from the date of acquisition; (3) time deposits, demand deposits, certificates of deposit and Eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any bank lender party to the First Lien Letter of Credit Facility or an Affiliate thereof or with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of "B" or better; (4) securities issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Moody's or S&P ; (5) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above; (6) commercial paper having one of the two highest ratings obtainable from Moody's or S&P and in each case maturing within one year after the date of acquisition; and (7) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (6) of this definition. "Change of Control" means the occurrence of any of the following: (1) any "person" (as such term is used in Section 13(d)(3) of the Exchange Act), other than one or more Permitted Holders, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company, whether as a result of the issuance of securities of the Company, any merger, consolidation, liquidation or dissolution of the Company, any direct or indirect transfer of securities or otherwise; provided that the creation of a holding company to own all of the Capital Stock of the Company shall not be deemed to constitute a Change of Control under this clause (1) if, immediately after consummation of such transaction, the holders of the Capital Stock of such holding company are the same holders of the Capital Stock of the Company immediately before such transaction and the percentage holding of such holders is unaffected by the creation of such holding company; (2) the first day on which a majority of the members of the Board of Directors are not Continuing Directors; (3) the adoption of a plan relating to the liquidation or dissolution of the Company, other than to effect a Change of Domicile; or (4) the sale, lease or transfer, other than by way of merger or consolidation, in one or a series of related transactions, of all or substantially all the assets of the Company and its Restricted Subsidiaries taken as a whole to any "person" or "group" as that term is used in Section 13(d)(3) of the Exchange Act (other than to the Company, any Guarantor or one or more Permitted Holders or other than to effect a Change of Domicile). "Change of Domicile" means a transaction or series of related transactions, including without limitation (1) a merger, amalgamation, combination or consolidation of the Company with or into another Person, (2) the acquisition of all the Capital Stock of the Company or (3) the sale, transfer, conveyance or other disposition of all or substantially all the assets of the Company and its Subsidiaries taken as a whole to another Person, the sole purpose of which is to reincorporate the Company in another jurisdiction or organize a successor entity to the Company in another jurisdiction. "Chapter 11 Cases" means those bankruptcy cases jointly administered under the caption "In re Ogden New York Services, Inc., et al.," Case Nos. 02-40826 (CB), et al. "Clearstream" means Clearstream Banking, S.A. "Code" means the Internal Revenue Code of 1986, as amended. "Collateral" means all property and assets of the Company or any Guarantor with respect to which from time to time a Lien is granted as security for the Notes pursuant to the applicable Security Documents. "Collateral Agent" means Bank of America, N.A. in its capacity as the "Collateral Agent" as appointed pursuant to the Security Documents and any successor thereto in such capacity. "Commission" means the Securities and Exchange Commission. "Company" means Covanta Energy Corporation, a Delaware corporation, and any and all successors thereto. "Consolidated Cash Interest Expense" means, for any period, (i) Consolidated Interest Expense for such period minus (ii) to the extent included in Consolidated Interest Expense for such period, the change in Accreted Value of the Notes, interest paid in kind and not in cash during such period and any other amounts not paid or payable in cash. "Consolidated Coverage Ratio" means, with respect to the Company and its Consolidated Subsidiaries, as of any date of determination, the ratio of: (1) the aggregate amount of Adjusted EBITDA for the period of the most recent four consecutive fiscal quarters (commencing on or after the Issue Date) for which internal financial statements are available prior to the date of such determination to (2) Consolidated Cash Interest Expense for such four fiscal quarters; provided, however, that: (A) if the Company or any of its Restricted Subsidiaries has incurred any Indebtedness since the beginning of such period that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio is an incurrence of Indebtedness, Adjusted EBITDA and Consolidated Cash Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been incurred on the first day of such period (in each case other than Indebtedness incurred under any revolving credit facility, in which case interest expense shall be computed based upon the average daily balance of such Indebtedness during the applicable period) and the discharge of any other Indebtedness repaid, repurchased, defeased (whether legally or as to covenants only) or otherwise discharged with the proceeds of such new Indebtedness as if such discharge had occurred on the first day of such period; (B) if the Company or any of its Restricted Subsidiaries has repaid, repurchased, defeased or otherwise discharged, including permanent reductions in letter of credit commitments, any Indebtedness since the beginning of such period or if any Indebtedness is to be repaid, repurchased, defeased (whether legally or as to covenants only) or otherwise discharged, including permanent reductions in letter of credit commitments (in each case, if such Indebtedness has been permanently repaid and has not been replaced, other than Indebtedness incurred under any revolving credit facility unless such Indebtedness is permanently reduced, in which case interest expense shall be computed based upon the average daily balance of such Indebtedness during the applicable period) on the date of the transaction giving rise to the need to calculate the Consolidated Coverage Ratio, Adjusted EBITDA and Consolidated Cash Interest Expense for such period shall be calculated on a pro forma basis as if such discharge had occurred on the first day of such period and as if the Company or such Restricted Subsidiary has not earned any interest income actually earned during such period in respect of cash or Cash Equivalents used to repay, repurchase, defease or otherwise discharge such Indebtedness; (C) if since the beginning of such period, the Company or any of its Restricted Subsidiaries has made any Asset Sale, Adjusted EBITDA for such period shall be reduced by an amount equal to Adjusted EBITDA (if positive) directly attributable to the assets that are the subject of such Asset Sale for such period or increased by an amount equal to Adjusted EBITDA (if negative) directly attributable thereto for such period, and Consolidated Cash Interest Expense for such period shall be reduced by an amount equal to the Consolidated Cash Interest Expense directly attributable to any Indebtedness of the Company or any Restricted Subsidiary of the Company repaid, repurchased, defeased or otherwise discharged with respect to the Company and its continuing Restricted Subsidiaries in connection with such Asset Sale for such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Cash Interest Expense for such period directly attributable to the Indebtedness of such Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such sale); (D) if since the beginning of such period, the Company or any of its Restricted Subsidiaries (by merger or otherwise) has made an Investment in any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary) or an acquisition of assets, including any such Investment or acquisition of assets occurring in connection with a transaction causing a calculation to be made hereunder, which constitutes all or substantially all of an operating unit of a business, Adjusted EBITDA and Consolidated Cash Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any Indebtedness) as if such Investment or acquisition occurred on the first day of such period; and (E) if since the beginning of such period, any Person (that subsequently became a Restricted Subsidiary of the Company or was merged with or into the Company or any of its Restricted Subsidiaries since the beginning of such period) shall have made any Asset Sale or any Investment or acquisition of assets that would have required an adjustment pursuant to clause (C) or (D) above if made by the Company or any of its Restricted Subsidiaries during such period, Adjusted EBITDA and Consolidated Cash Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such Asset Sale, Investment or acquisition of assets occurred on the first day of such period. For purposes of this definition, whenever pro forma effect is to be given to an acquisition of assets, the amount of income or earnings relating thereto and the amount of Consolidated Cash Interest Expense associated with any Indebtedness incurred in connection therewith, the pro forma calculations shall be determined in good faith by a responsible financial or accounting officer of the Company. Any such pro forma calculations shall reflect any pro forma expense and cost reductions attributable to such acquisitions, to the extent such expense and cost reduction would be consistent with Regulation S-X, promulgated under the Securities Act, as such regulation is in effect from time to time, and permitted by the Commission to be reflected in pro forma financial statements included in a registration statement filed with the Commission. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the date of determination in excess of twelve months). "Consolidated Interest Expense" means, for any period, (i) the total interest expense, net of interest income, of the Company and its Consolidated Subsidiaries, determined on a consolidated basis in accordance with GAAP, minus (ii) interest expense incurred by the Company or its Consolidated Subsidiaries in such period in connection with Indebtedness constituting Non-Recourse Debt or Limited Recourse Debt, determined on a consolidated basis in accordance with GAAP, plus (iii) to the extent incurred by the Company or its Consolidated Subsidiaries in such period but not included in such interest expense, without duplication, determined in each case on a consolidated basis in accordance with GAAP, except to the extent related to Non-Recourse Debt and Limited Recourse Debt: (1) interest expense attributable to Capital Lease Obligations and the imputed interest with respect to Attributable Debt; (2) amortization of debt discount; (3) amortization of debt issuance costs (other than any such costs associated with the Indebtedness incurred by the Company or its Subsidiaries in accordance with the Plan of Reorganization); (4) amortization of capitalized interest; (5) noncash interest expense; (6) commissions, discounts and other fees and charges attributable to letters of credit and bankers' acceptance financings; (7) interest or dividends accrued and unpaid on any Indebtedness of any other Person to the extent such Indebtedness is Guaranteed by the Company or any Consolidated Subsidiary; (8) net payments, if any, pursuant to Hedging Obligations (including amortization of fees); (9) dividends in respect of all Disqualified Stock of the Company and all Preferred Stock of any of its Consolidated Subsidiaries, to the extent held by Persons other than the Company or another Consolidated Subsidiary; and (10).....cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than the Company) in connection with Indebtedness incurred by such plan or trust. "Consolidated Net Income" means, for any period, the net income or loss of the Company and its Consolidated Subsidiaries for such period determined in accordance with GAAP; provided, however, that: (1) net income of any Person (other than the Company) which is not a Restricted Subsidiary, shall be excluded from such Consolidated Net Income, except that: (A) subject to the limitations contained in clause (4) below, the Company's equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Company or a Restricted Subsidiary of the Company as a dividend or other distribution (subject, in the case of a dividend or other distribution made to a Restricted Subsidiary of the Company, to the limitations contained in clause (2) below); and (B) the Company's equity in a net loss of any such Person for such period shall be included in determining such Consolidated Net Income; (2) net income (or loss) of any Restricted Subsidiary of the Company, other than a Guarantor, to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of that income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or is, directly or indirectly, restricted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Restricted Subsidiary or its stockholders or other holders of its equity, which restrictions have not been legally and effectively waived, shall be excluded from such Consolidated Net Income except that: (A) subject to the limitations contained in clause (4) below, the Company's equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary of the Company as a dividend or other distribution (subject, in the case of a dividend or other distribution made to another Restricted Subsidiary of the Company, to the limitation contained in this clause); and (B) the Company's equity in a net loss of any such Restricted Subsidiary for such period shall be included in determining such Consolidated Net Income; (3) any gain (or loss) realized upon the sale or other disposition of any asset of the Company or any of its Restricted Subsidiaries (including pursuant to any Sale/Leaseback Transaction) that is not sold or otherwise disposed of in the ordinary course of business and any gain (or loss) realized upon the sale or other disposition of any Capital Stock of any Subsidiary of the Company shall be excluded from such Consolidated Net Income (without regard to abandonments or reserves relating thereto); (4) amounts specified in clause (ii)(a) of the definition of Adjusted EBITDA (determined in accordance with such definition) shall be excluded from such Consolidated Net Income; (5) any extraordinary gain or loss shall be excluded from such Consolidated Net Income; (6) the cumulative effect of a change in accounting principles shall be excluded from such Consolidated Net Income; (7) gains or losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP shall be excluded from such Consolidated Net Income; (8) any non-cash deferred tax expense shall be excluded from such Consolidated Net Income; (9) Fresh Start Charges and reorganization charges taken in connection with the Plan of Reorganization shall be excluded from such Consolidated Net Income; (10) amortization of debt issuance costs in respect of Indebtedness incurred by the Company or its Subsidiaries in accordance with the Plan of Reorganization shall be excluded from such Consolidated Net Income; and (11) any charges resulting from the application of Statement of Financial Accounting Standards No. 142 or 145 shall be excluded from such Consolidated Net Income. "Consolidated Subsidiaries" means the Restricted Subsidiaries of the Company; provided, however, that the interest of the Company or any of its Restricted Subsidiaries in an Unrestricted Subsidiary shall be accounted for as an Investment. "Continuing Directors" means, as of any date of determination, those members of the Board of Directors who: (a) were members of the Board of Directors on the Issue Date; or (b) were nominated for election or elected to the Board of Directors with the affirmative vote of, or whose election or appointment was otherwise approved or ratified (whether before or after nomination or election) by, at least a majority of the Continuing Directors who were members of the Board of Directors at the time of the nomination, election or approval, as applicable. "Corporate Trust Office of the Trustee" will be at the address of the Trustee specified in Section 13.02 or such other address as to which the Trustee may give notice to the Company. "CPIH" means Covanta Power International Holdings, Inc., a Delaware corporation, and any and all successors thereto. "CPIH Reimbursement Agreement" means the Management Services and Reimbursement Agreement entered into by CPIH, the Company and certain of their respective Subsidiaries on the Issue Date, as such agreement may be amended, supplemented or otherwise modified from time to time. "CPIH Subsidiaries" means, on and after the Issue Date, CPIH and its Subsidiaries. "Credit Agents" means, at any time, the Persons serving at such time as the sole lender or as the "Agent," "Administrative Agent" or in some other similar capacity under each of the Credit Agreements, respectively (each of them being referred to individually herein as a "Credit Agent"). "Credit Agreements" means the First Lien Letter of Credit Facility and the Second Lien Letter of Credit Facility (each being referred to individually herein as a "Credit Agreement") and any other revolving credit or letter of credit facility entered into by the Company or any of its Restricted Subsidiaries. "Credit Agreement Obligations" means (i) all Bank Indebtedness and (ii) all other obligations (not constituting Indebtedness) of the Company or any Guarantor under the Credit Agreements. "Custodian" means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto. "Default" means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default. "Definitive Note" means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the "Schedule of Exchanges of Interests in the Global Note" attached thereto. "Depositary" means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture. "DHC" means Danielson Holding Corporation, a Delaware corporation, and any and all successors thereto. "Discharge of Credit Agreement Obligations" means payment in full in cash of the principal of and interest and premium, if any, on all Bank Indebtedness, payment in full in cash of any other Credit Agreement Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal, interest and premium, if any, are paid and the termination of all letter of credit commitments and other commitments thereunder. "Disqualified Stock" means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of such Capital Stock), or upon the happening of any event, matures, excluding any maturity as the result of the redemption thereof at the option of the issuer thereof, or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of such Capital Stock, in whole or in part, on or prior to the date on which the Notes mature, except to the extent that such Capital Stock is solely redeemable with, or solely exchangeable for, any Capital Stock that is not Disqualified Stock; provided that only the portion of the Capital Stock or other security which so matures, is mandatorily redeemable or is so redeemable at the option of the holder prior to such date shall be deemed to be Disqualified Stock; provided further that if such Capital Stock or other security is issued to and held by any employee pursuant to any plan program or arrangement or any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock or other security shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee's termination, death or disability. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of such Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an Asset Sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07. "Domestic Subsidiary" means any Restricted Subsidiary of the Company that was formed under the laws of the United States or any state of the United States or the District of Columbia. "Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). "Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear system. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Excluded Subsidiary" means any Domestic Subsidiary which is not a "Borrower", and is not required to be a "Borrower", under either the First Lien Letter of Credit Facility or the Second Lien Letter of Credit Facility, as such term is defined in those agreements. "Existing Indebtedness" means Indebtedness of the Company and its Restricted Subsidiaries (other than Indebtedness under the Credit Agreements) in existence on the Issue Date or otherwise issued in accordance with the Plan of Reorganization. "Existing IPP International Project Guaranties" means, collectively, (i) the existing guaranty by Covanta Energy Group, Inc. of the obligations of the CPIH Subsidiaries under certain agreements relating to the Haripur Project, the Samalpatti Project and the Trezzo Project, (ii) the existing guaranty by Covanta Projects, Inc. of the obligations of the CPIH Subsidiaries under certain agreements relating to the Quezon Project and (iii) the existing guaranty by the Company of the obligations of the CPIH Subsidiaries under certain agreements relating to the Balaji/Madurai Project and the LICA Project, as each such guaranty may be amended, restated, supplemented or otherwise modified on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms of such guaranty as in effect on the Issue Date. "Expansion" means, with respect to any waste-to-energy Project in existence on the Issue Date, additions or improvements to the existing facilities of such Project that involve the addition of a boiler or an increase in turbine generating capacity. "Expense Reimbursement Agreement" means [ ] and any amendments, modifications or extensions thereof on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms of such agreement as in effect on the Issue Date. "First Lien Letter of Credit Facility" means the Credit Agreement, dated as of March [___], 2004, by and among the Company, the guarantors party thereto, Deutsche Bank Securities, Inc., as documentation agent, Bank of America, N.A., as administrative agent, and the lenders party thereto, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended (including any amendment and restatement thereof), modified, renewed, increased, supplemented, refunded, replaced or refinanced in whole or in part from time to time, including any agreement extending the maturity of, consolidating or otherwise restructuring (including adding subsidiaries of the Company as additional guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other agent, lender or group. "Fresh Start Charges" means, for any period, the aggregate non-cash charges of the Company and its Restricted Subsidiaries arising from the application of fresh start accounting principles, determined on a consolidated basis in accordance with GAAP. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, as in effect from time to time. "Global Notes" means one or more global Notes registered in the name of the Depositary or its nominee issued in accordance with Article 2, substantially in the form of Exhibit A hereto, and bearing the Global Note Legend and including the "Schedule of Exchanges of Interests in the Global Note" attached thereto. "Global Note Legend" means the legend set forth in Section 2.06(f), which is required to be placed on all Global Notes issued under this Indenture. "Government Securities" means direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit. "Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person: (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (2) entered into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term "Guarantee" shall not include (i) endorsements of negotiable instruments for collection or deposit in the ordinary course of business or (ii) Performance Guarantees. The term "guarantee" used as a verb has a corresponding meaning. "Guarantors" means each of: (1) the Company's Domestic Subsidiaries on the Issue Date other than Excluded Subsidiaries; and (2) any other Subsidiary of the Company that executes a Subsidiary Guarantee in accordance with the provisions of this Indenture; and their respective successors and assigns. "Haverhill Deferred PPA Income" means, for any period, all non-cash income resulting from payments made in 1998 by the counterparty to the power purchase agreement relating to the Haverhill Project in order to "buydown" its obligations under such agreement, to the extent such non-cash income is included in consolidated revenue or consolidated earnings of the Company and its Subsidiaries during such period. "Hedging Obligations" means, with respect to any specified Person, the obligations of such Person under: (1) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements; (2) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or interest rates; and (3) forward agreements or arrangements designed to hedge against fluctuation in electricity rates pertaining to electricity produced by a Project, so long as the contractual arrangements relating to such Project contemplate that the Company or its Subsidiaries shall deliver such electricity to third parties. "Holder" means a Person in whose name a Note is registered. "Indebtedness" means, with respect to any Person on any date of determination (without duplication) the following items if and to the extent that any of them (other than items specified under clauses (3), (8) and (9) below) would appear as a liability or, in the case of clause (6) only, Preferred Stock on the balance sheet of such Person, prepared in accordance with GAAP: (1) the principal amount of and premium, if any, in respect of indebtedness of such Person for borrowed money; (2) the principal amount of and premium, if any, in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (3) all obligations of such Person in respect of letters of credit, bankers' acceptances, or other similar instruments (including reimbursement obligations with respect thereto, but excluding obligations in respect of letters of credit issued in respect of Trade Payables); (4) all obligations of such Person to pay the deferred and unpaid purchase price of property or services (except Trade Payables), which purchase price is due more than twelve months after the date of placing such property in service or taking delivery and title thereto or the completion of such services; (5) all Capital Lease Obligations and all Attributable Debt of such Person; (6) the amount of all obligations of such Person with respect to the redemption, repayment or repurchase of any Disqualified Stock or, with respect to any Subsidiary of such Person, any Preferred Stock (but excluding, in each case, any accrued dividends); (7) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of Indebtedness of such Person shall be the lesser of: (A) the fair market value of such asset at such date of determination and (B) the amount of such Indebtedness of such other Persons; (8) Hedging Obligations of such Person; (9) all obligations of such Person in respect of Insurance Premium Financing Arrangements; and (10) all obligations of the type referred to in clauses (1) through (9) of other Persons and all dividends or distributions of other Persons for the payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and the maximum liability, upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations described above, at such date; provided, however, that the amount outstanding at any time of any Indebtedness issued with original issue discount shall be deemed to be the face amount of such Indebtedness less the remaining unaccreted portion of the original issue discount of such Indebtedness at such time, as determined in accordance with GAAP. "Indenture" means this indenture, as amended or supplemented from time to time. "Indirect Participant" means a Person who holds a beneficial interest in a Global Note through a Participant. "Initial Principal Amount" means, with respect to each $1,000 principal amount at Stated Maturity of Notes, $891.30. "Insurance Premium Financers" means Persons who are not Affiliates of the Company who advance insurance premiums for the Company and its Subsidiaries pursuant to Insurance Premium Financing Arrangements. "Insurance Premium Financing Arrangements" means, with respect to any Person, agreements with Insurance Premium Financers pursuant to which such Insurance Premium Financers advance insurance premiums for or on behalf of such Person. Insurance Premium Financing Arrangements (i) shall not provide, for the benefit of such Insurance Premium Financers, any security interest in any property of the Company or any of its Subsidiaries other than gross unearned premiums for the insurance policies that are the subject of such arrangements, (ii) shall not purport to prohibit any of the Liens created in favor of Trustee for the benefit of Holders pursuant to the Security Documents, and (iii) shall not contain any provision or contemplate any transaction prohibited by the Indenture. "Intercreditor Agreement" means that certain intercreditor agreement, dated as of March [__], 2004, by and among the Company, the Company's subsidiaries listed on the signature pages thereto, the financial institutions listed on the signature pages thereto, Bank of America, N.A., as administration agent, Deutsche Bank Securities, Inc., as documentation agent, DHC and the Trustee, as amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time. "Interest Accrual Period" means the period from (and including) the date of issuance of the Notes to but excluding the first Interest Payment Date after issuance, and each successive six-month period from and including each Interest Payment Date to but excluding the following Interest Payment Date. "Interest Payment Date" means March [___] and September [___] of each year, commencing on September [___], 2004, or if any such day is not a Business Day, the next succeeding Business Day. "Investments" means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the form of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the Company or any Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Company's Investments in such Restricted Subsidiary that were not sold or disposed of in an amount determined as provided in the final paragraph of Section 4.07. Any deemed investment in any Person not involving a transfer of cash or other assets to such Person and resulting solely from the application of pushdown accounting rules shall not constitute an Investment. "Investor Parties" means (i) D.E. Shaw Laminar Portfolios, L.L.C., (ii) SZ Investments, LLC, and (iii) Third Avenue Value Fund, Inc. "Issue Date" means the first date on which the Notes are issued. "Legal Holiday" means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period. "Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction. "Limited Recourse Debt" means, with respect to any Subsidiary of the Company, Indebtedness of such Subsidiary with respect to which the recourse of the holder or obligee of such Indebtedness is limited to (i) assets associated with a Project (which in any event shall not include assets held by the Company or any Subsidiary other than a Subsidiary whose sole business is the ownership and/or operation of such Project and substantially all of whose assets are associated with such Project) in respect of which such Indebtedness was incurred or (ii) the Equity Interests in such Subsidiary, but in the case of clause (ii) only if such Subsidiary's sole business is the ownership and/or operation of such Project and substantially all of such Subsidiary's assets are associated with such Project. Indebtedness of a Subsidiary of the Company shall not fail to be Limited Recourse Debt solely by virtue of the fact that the holders of such Limited Recourse Debt have recourse to the Company or another Subsidiary of the Company pursuant to a Performance Guaranty, so long as such Performance Guaranty is not prohibited by Section 4.20. "Management Investors" means the officers and employees of the Company or a Subsidiary of the Company who acquire Voting Stock of DHC or the Company on or after the Issue Date. "Moody's" means Moody's Investors Service, Inc. or any successor to the rating agency business of Moody's Investors Service, Inc. "Mortgage" means a mortgage, deed of trust, assignment of leases and rents, leasehold mortgage or other security document granting a Lien on any parcel of real property to secure the Obligations under the Notes. "Net Depreciation and Amortization Expense" means, for any period, (i) the sum of the amounts (each expressed as a positive number) for such period of "Depreciation" and "Amortization", as each such line item is reflected in the Company's consolidated statement of cash flows prepared in conformity with GAAP and reported in a manner consistent with the Company's reporting of such amount in its last quarterly or annual report (as the case may be) on Form 10-Q or Form 10-K, respectively, filed with the Commission prior to the Issue Date, whether such line items are so titled or otherwise titled, plus other non-cash charges, minus (ii) Haverhill Deferred PPA Income. "Net Proceeds" means the aggregate cash proceeds received by the Company or any of its Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of (i) the costs directly related to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, sales commissions and consent fees, (ii) taxes paid or payable as a result of such Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, (iii) amounts required to be applied to the repayment or cash collateralization of Indebtedness secured by a Lien on the asset or assets that were the subject of such Asset Sale, and (iv) any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP. "Non-Recourse Debt" means Indebtedness: (1) as to which neither the Company, any Guarantor, nor any Restricted Subsidiary (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (ii) is directly liable as a guarantor or otherwise, or (iii) constitutes the lender; and (2) no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Notes) of the Company, any Guarantor, or any Restricted Subsidiary to declare a default on such other Indebtedness or cause the payment of such other Indebtedness to be accelerated or payable prior to its stated maturity; provided that Performance Guarantees permitted under this Indenture shall not cause any such Indebtedness not to be Non-Recourse Debt. "Notes" has the meaning assigned to it in the preamble to this Indenture. "Obligations" means all principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable (including post-petition interest whether or not allowable as a claim in any proceeding) under the documentation governing any Indebtedness. "Officer" means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer, any Senior Vice President, or any Vice President of such Person. "Officer's Certificate" means a certificate signed on behalf of the Company by an Officer of the Company that meets the requirements of Section 13.05. "Opinion of Counsel" means an opinion from legal counsel who is reasonably acceptable to the Trustee and, that meets the requirements of Section 13.05. Such counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee. "Participant" means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream). "Performance Guaranty" means any agreement entered into by the Company or any Restricted Subsidiary of the Company under which the Company or such Restricted Subsidiary (i) guarantees the performance of a Subsidiary of the Company under a lease or sublease or under a service, management or operating agreement relating to a Project or (ii) guarantees the performance of CPIH or any of its Subsidiaries under a lease or sublease or under a service, management or operating agreement in existence on the Issue Date, as amended or modified on terms not materially less advantageous to the Company or such Restricted Subsidiary. "Permitted Business" means any business of the type engaged in by the Company or any of its Restricted Subsidiaries as of the Issue Date or any business reasonably related, ancillary or complementary thereto. "Permitted Holders" means (i) DHC and the Management Investors and (ii) any Related Party of a Person referred to in the immediately preceding clause (i). "Permitted Investment" means an Investment by the Company or any Restricted Subsidiary of the Company: (1) in the Company, a Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) or a Person that will, upon the making of such Investment, become a Restricted Subsidiary of the Company; (2) consisting of intercompany loans to Bankrupt Subsidiaries, so long as (a) the proceeds of such loans are applied to working capital, maintenance, operation, payroll and other liquidity requirements in the ordinary course of business of such Bankrupt Subsidiaries, and (b) the aggregate amount of such intercompany loans outstanding to all Bankrupt Subsidiaries at any time does not exceed $3.0 million; (3) in another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, the Company or a Restricted Subsidiary of the Company; (4) in Cash Equivalents; (5) in receivables owing to the Company or any Restricted Subsidiary of the Company if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Company or any such Restricted Subsidiary deems reasonable under the circumstances; (6) in payroll, travel and similar advances to employees to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business; (7) in loans or advances to employees made in the ordinary course of business and not exceeding $2.0 million in the aggregate outstanding at any one time, of which not more than $1.0 million shall be for purposes other than employee relocation expenses; (8) received in settlement of debts created in the ordinary course of business and owing to the Company or any Restricted Subsidiary or in satisfaction of judgments; (9) in any Person to the extent such Investment represents the non-cash portion of the consideration received for an Asset Sale that was made pursuant to and in compliance with Section 4.10 or a transaction not constituting an Asset Sale by reason of the $10.0 million threshold contained in the definition thereof; (10) that constitutes a Hedging Obligation or commodity hedging arrangement entered into for bona fide hedging purposes of the Company in the ordinary course of business and otherwise in accordance with this Indenture; (11) in securities of any trade creditor, supplier or customer received in settlement of obligations or pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditor, supplier or customer; (12) acquired as a result of a foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; (13) consisting of purchases and acquisitions of inventory, supplies, materials, equipment or contract rights or licenses or leases of intellectual property, in any case, in the ordinary course of business; (14) consisting of intercompany Indebtedness not prohibited under Section 4.09; (15) consisting of a Guarantee not prohibited under Section 4.09; (16) the consideration for which consists solely of shares of Capital Stock (other than Disqualified Stock) of the Company; (17) required to be made by the Company and its Restricted Subsidiaries under Performance Guarantees in effect on the Issue Date or entered into in compliance with the terms of Section 4.20; (18) deemed to have been made as a result of the acquisition of a Person that at the time of such acquisition held instruments constituting Investments that were not made or acquired in contemplation of such acquisition; (19) in prepaid expenses and leases, and in utility and workers' compensation performance and other similar deposits made in ordinary course of business; (20) in CPIH and its Subsidiaries and in Unrestricted Subsidiaries of the Company to fund administrative services including, but not limited to, payroll, cash management, administration, billing, procurement, and equity investments the Company is required to make in CPIH and its Subsidiaries in a net amount not to exceed $20.0 million in the aggregate outstanding at any one time; (21) under the CPIH Reimbursement Agreement or the Tax Sharing Agreement; (22) advances by the Company or a Restricted Subsidiary of the Company to fund expansion, replacements or improvements in respect of a publicly-owned Project, which advances are reimbursable by the owner of the Project; (23) made pursuant to the Plan of Reorganization; and (24) other Investments having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value) not exceeding $70.0 million in the aggregate outstanding at any one time. "Permitted Liens" means: (1) Liens securing the Credit Agreement Obligations; (2) Liens securing the Notes and the Guarantees; (3) Liens in favor of the Company or any Guarantor; (4) Liens on property or assets of a Person existing at the time such Person is acquired by, merged with or into or consolidated with the Company or any Restricted Subsidiary; provided that such Liens were not put in place in contemplation of such acquisition, merger or consolidation and do not extend to any assets other than those of the Person acquired by, merged into or consolidated with the Company or the Restricted Subsidiary; (5) Liens on property or assets existing at the time of acquisition of the property or assets by the Company or any Restricted Subsidiary of the Company; provided that such Liens were not put in place in contemplation of such acquisition; (6) Liens existing on the Issue Date or otherwise granted to secure Existing Indebtedness in accordance to the Plan of Reorganization; (7) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent, that are not yet subject to penalties or interest for non-payment or that are being contested in good faith by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor; (8) Liens securing Permitted Refinancing Indebtedness where the Liens securing Indebtedness being refinanced were permitted under this Indenture; (9) easements, rights-of-way, zoning and similar restrictions and other similar encumbrances or title defects incurred or imposed, as applicable, in the ordinary course of business; (10) Liens securing Indebtedness permitted by clause (5) of Section 4.09(b) covering only the assets acquired with such Indebtedness; (11) Liens with respect to Permitted Indebtedness incurred pursuant to clause (8) or (10) of Section 4.09(b). (12) Liens securing Hedging Obligations permitted under this Indenture; (13) Liens arising from the filing of Uniform Commercial Code financing statements in connection with operating leases; (14) attachment or judgment Liens not giving rise to an Event of Default; (15) Liens encumbering property or assets of the Company or any Restricted Subsidiary of the Company consisting of carriers', warehousemen's, mechanics', materialmen's, repairmen's, landlords', suppliers' and other similar Liens, and other Liens arising by operation of law and incurred in the ordinary course of business for sums that are not overdue or that are being contested in good faith by appropriate proceedings and (if so contested) for which appropriate reserves with respect thereto have been established and maintained on the books of the Company or such Restricted Subsidiary in accordance with GAAP; (16) Liens incurred, or pledges or deposits made in the ordinary course of business and consistent with industry practice in connection with, workers' compensation, unemployment insurance, or other forms of governmental insurance or benefits, including any Liens securing letters of credit issued in the ordinary course of business in connection with the foregoing; (17) Liens in the nature of rights of set-off of banks and other Persons; (18) Liens in favor of customs and revenue authorities and other similar authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business; (19) leases or subleases granted to third Person not materially interfering with the business of the Company and its Restricted Subsidiaries taken as a whole; (20) any interest or title of a lessor or lessee or sublessor or sublessee under any operating lease; (21) Liens under licensing agreements for use of intellectual property entered into in the ordinary course of business; (22) Liens incurred or deposits made in connection with the purchase of inventory; provided that any such purchase of inventory is incidental to the conduct of the business of the Company or a Restricted Subsidiary of the Company in accordance with its then current business practices, such Liens are in the nature of a vendor's lien or a reservation of title and the obligations secured by such Liens are Trade Payables incurred in the ordinary course of business of the Company or such Restricted Subsidiary; (23) minor imperfections of, or encumbrances on, title that do not materially impair the value of property for its intended use; (24) Liens incurred or deposits made to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money); (25) Liens securing reimbursement obligations with respect to letters of credit incurred in accordance with this Indenture that encumber documents and other property relating to such letters of credit and the products and proceeds thereof; (26) Liens on assets of any Subsidiary of the Company or on the Equity Interests of such Subsidiary, in each case to the extent such Liens secure Limited Recourse Debt or Non-Recourse Debt of such Subsidiary permitted by Section 4.09; (27) Liens on cash collateral of the Company securing insurance deductibles or self-insurance retentions required by third party insurers in connection with insurance arrangements entered into in the ordinary course of business by the Company and its Subsidiaries with such insurers; (28) Liens pursuant to Insurance Premium Financing Arrangements permitted under this Indenture, so long as such Liens attach only to the gross unearned premiums for the insurance policies which are the subject of such arrangements; and (29) Liens not otherwise permitted by clauses (1) through (28) above securing Indebtedness in an aggregate amount at the time of incurrence, together with all other Indebtedness secured by then outstanding Liens previously incurred or assumed pursuant to this clause (29), not in excess of $10.0 million. "Permitted Refinancing Indebtedness" means any Indebtedness of the Company or any of its Restricted Subsidiaries incurred or issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (A) other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that: (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased (whether legally or as to covenants only) or refunded (plus all accrued interest on such Indebtedness and the amount of all fees, expenses and premiums incurred in connection therewith); provided, however, that, notwithstanding the foregoing, Permitted Refinancing Indebtedness with respect to Permitted Debt described in clauses (3) and (4) of Section 4.09(b) may be incurred in an amount not in excess of 110% of the principal amount of the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest on such Indebtedness and the amount of all fees, expenses and premiums incurred in connection therewith); (2) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and (4) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary of the Company which is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; or (B) Limited Recourse Debt or Non-Recourse Debt of municipally-sponsored privately-owned Projects so long as the terms of such Permitted Refinancing Indebtedness, taken as a whole, are not materially more restrictive to the Company and its Subsidiaries. "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity. "Plan of Reorganization" means the Debtors' Second Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, filed with the United States Bankruptcy Court for the Southern District of New York on December 18, 2003, as amended pursuant to the confirmation order thereof dated March [__], 2004. "Preferred Stock" as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) that is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person. "Project" means any waste-to-energy facility, electrical generation plant, cogeneration plant, water treatment facility or other facility for the generation of electricity or engaged in another line of business in which the Company and its Subsidiaries are permitted to be engaged hereunder for which a Subsidiary or Subsidiaries of the Company was, is or will be (as the case may be) an owner, operator, manager or builder, and shall also mean any two or more of such plants or facilities in which an interest has been acquired in a single transaction, so long as such interest constitutes an existing Investment on the Issue Date permitted hereunder; provided however, that a Project shall cease to be a Project at such time that the Company or any of its Subsidiaries ceases to have any existing or future rights or obligations (whether direct or indirect, contingent or matured) associated therewith. "Related Party" means (a) with respect to DHC, (i) any direct or indirect wholly-owned Subsidiary of DHC, any Approved DHC Investor and any officer, director or employee of DHC or any wholly-owned Subsidiary of DHC, (ii) any spouse or lineal descendant (including by adoption and stepchildren) of the officers, directors and employees referred to in clause (a)(i) of this definition or (iii) any trust, corporation or partnership 100%-in-interest of the beneficiaries, stockholders or partners of which consists of one or more of the persons described in clauses (a)(i) or (a)(ii) of this definition; or (b) with respect to any Management Investor (i) any spouse or lineal descendant (including by adoption and stepchildren) of such officer or employee or (ii) any trust, corporation or partnership 100%-in-interest of the beneficiaries, stockholders or partners of which consists of such officer or employee, any of the persons described in clause (b)(i) of this definition or any combination thereof. "Responsible Officer," when used with respect to the Trustee, means any officer within the Corporate Trust Office of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Restricted Investment" means an Investment other than a Permitted Investment. "Restricted Subsidiary" of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary. "S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill, Inc., or any successor to the rating agency business thereof. "Sale/Leaseback Transaction" means an arrangement relating to property now owned or hereafter acquired by the Company or a Restricted Subsidiary of the Company whereby the Company or such Restricted Subsidiary transfers such property to another Person and the Company or such Restricted Subsidiary leases it from such Person, other than leases between the Company and a Guarantor or between Guarantors. "Second Lien Letter of Credit Facility" means (i) the Credit Agreement, dated as of March [___], 2004, by and among the Company, each of its Subsidiaries listed on the signature pages thereof, the financial institution listed on the signature pages thereof and Bank One, N.A., as administrative agent, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended (including any amendment and restatement thereof), modified, renewed, increased, supplemented, refunded, replaced or refinanced in whole or in part from time to time, including any agreement extending the maturity of, consolidating or otherwise restructuring (including adding subsidiaries of the Company as additional guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other agent, lender or group. "Securities Act" means the Securities Act of 1933, as amended. "Security Agreement" means the Security Agreement, dated as of the date of this Indenture, by and among the Company, the Grantors (as defined therein) and the Collateral Agent, as amended, modified or supplemented from time to time in accordance with the terms of this Indenture. "Security Documents" means the Security Agreement, the Intercreditor Agreement and the Mortgages, dated as of the date of this Indenture, and any other document or instrument pursuant to which a Lien is granted by the Company or any Guarantor to secure any Obligations under the Notes and this Indenture or under which rights or remedies with respect to such Lien are governed, as such agreements may be amended, modified or supplemented from time to time. "Significant Subsidiary" means any Subsidiary that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date. "Stated Maturity" means, with respect to any installment of interest or principal on any Indebtedness, the fixed date on which the payment of interest or principal is scheduled to be paid in the documentation governing such Indebtedness, but does not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the fixed date scheduled for the payment thereof. "Subsidiary" means, with respect to any specified Person: (1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and (2) any partnership (i) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (ii) the only general partners of which are that Person or one or more Subsidiaries of such Person (or any combination thereof); provided, however, that, except to the extent expressly indicated, the term "Subsidiary," when used with respect to the Company or its Restricted Subsidiaries, shall not include CPIH or any of its Subsidiaries. "Subsidiary Guarantee" means, the Guarantee by each Guarantor of the Company's Obligations under this Indenture and the Notes, executed pursuant to the terms of this Indenture. "TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the date on which this Indenture is qualified under the TIA. "Tax Sharing Agreement" means the Tax Sharing Agreement among DHC, the Company and CPIH and any amendments, modifications or extensions thereof on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms of such agreement as in effect on the Issue Date. "Trade Payables" means, with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors created, assumed or Guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of goods or services. "Trustee" means the party named as such in the preamble to this Indenture until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder. "Unrestricted Subsidiary" means any Subsidiary of the Company that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary: (1) has no Indebtedness other than Non-Recourse Debt; (2) is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are not materially less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company; (3) is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person's financial condition or to cause such Person to achieve any specified levels of operating results; and (4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be evidenced by filing with the Trustee a certified copy of the resolution of the Board of Directors giving effect to such designation and an Officer's Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements to be an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.09, the Company will be in default of such covenant. The Board of Directors may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (1) such Indebtedness is permitted under Section 4.09, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation. "Unsecured Notes" means the 7.5% Subordinated Unsecured Notes due 2011 issued by the Company pursuant to an indenture dated March [___], 2004. "Voting Stock" of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the board of directors or comparable governing body of such Person. "Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (1) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (2) the then outstanding principal amount of such Indebtedness. Section 1.02 Other Definitions. Term Defined in ---- Section ------- "Affiliate Transaction"............................. 4.11 "Asset Sale Offer".................................. 3.09 "Authentication Order".............................. 2.02 "Change of Control Offer"........................... 4.15 "Change of Control Payment"......................... 4.15 "Change of Control Payment Date".................... 4.15 "Covenant Defeasance"............................... 8.03 "DTC"............................................... 2.03 "Event of Default".................................. 6.01 "Excess Proceeds"................................... 4.10 "Exemption" ........................................ 10.03 "incur"............................................. 4.09 "Legal Defeasance".................................. 8.02 "Offer Amount"...................................... 3.09 "Offer Period"...................................... 3.09 "Paying Agent"...................................... 2.03 "Permitted Debt".................................... 4.09 "Purchase Date"..................................... 3.09 "Registrar"......................................... 2.03 "Relevant Liabilities".............................. 10.07 "Restricted Payments"............................... 4.07 "Subject Property".................................. 10.03 Section 1.03 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "indenture securities" means the Notes; "indenture security Holder" means a Holder of a Note; "indenture to be qualified" means this Indenture; "indenture trustee" or "institutional trustee" means the Trustee; and "obligor" on the Notes and the Subsidiary Guarantees means the Company and the Guarantors, respectively, and any successor obligor upon the Notes and the Subsidiary Guarantees, respectively. All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule under the TIA have the meanings so assigned to them. Section 1.04 Rules of Construction. Unless the context otherwise requires: (1) a term has the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (3) "or" is not exclusive; (4) words in the singular include the plural, and in the plural include the singular; (5) "will" shall be interpreted to express a command; (6) provisions apply to successive events and transactions; (7) references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the Commission from time to time; and (8) references to "Sections" or "Articles" are to the portions of this Indenture so designated. ARTICLE 2. THE NOTES Section 2.01 Form and Dating. (a) General. The Notes shall be known and designated as the "8.25% Senior Secured Notes Due 2011" of the Company. The Notes and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $1,000 and integral multiples thereof and shall be initially issued only in global form. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Company, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling. (b) Global Notes. Notes issued in global form shall be substantially in the form of Exhibit A attached hereto (including the Global Note Legend thereon and the "Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon and without the "Schedule of Exchanges of Interests in the Global Note" attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified therein and shall provide that it represents the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06. (c) Book-Entry Provisions. Participants and Indirect Participants shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary or by the Trustee as the custodian for the Depositary or under such Global Note, and the Depositary shall be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Participants or Indirect Participants, the Applicable Procedures or the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Note. Section 2.02 Execution and Authentication. An Officer must sign the Notes for the Company and an Officer or director of each Guarantor must sign such Guarantor's Guarantee, in each case, by manual or facsimile signature. If an Officer or director whose signature is on a Note or Guarantee no longer holds that office at the time a Note or Guarantee is authenticated, the Note or Guarantee shall nevertheless be valid. A Note shall not be valid until authenticated by the manual or facsimile signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture. On the date of the Indenture, the Trustee shall, upon receipt of a written order of the Company signed by two Officers (an "Authentication Order"), authenticate the Notes for $230.0 million in aggregate principal amount at Stated Maturity. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate the Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company. Section 2.03 Registrar and Paying Agent. The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange ("Registrar") and an office or agency where Notes may be presented for payment ("Paying Agent"). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term "Registrar" includes any co-registrar and the term "Paying Agent" includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar. The Company initially appoints The Depository Trust Company ("DTC") to act as Depositary with respect to the Global Notes. The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes. Section 2.04 Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of or premium, if any, or interest on the Notes, and shall notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes. Section 2.05 Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA ss. 312(a). Section 2.06 Transfer and Exchange. (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. Global Notes will be exchanged by the Company for Definitive Notes only if: (1) the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary; or (2) the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee; Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); provided that, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f). (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (1) or (2) below, as applicable: (1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(1). (2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(1), the transferor of such beneficial interest must deliver to the Registrar either: (A) both: (i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and (ii) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or (B) both: (i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and (ii) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above. (c) Transfer or Exchange of Beneficial Interests for Definitive Notes. Subject to Section 2.06(a), if any holder of a beneficial interest in a Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2), the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g), and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(1) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. (d) Transfer and Exchange of Definitive Notes for Beneficial Interests. A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Global Notes. (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. (f) Global Note Legend. Each Global Note shall bear a legend in substantially the following form: "THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN." (g) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase. (h) General Provisions Relating to Transfers and Exchanges. (1) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 or at the Registrar's request. (2) No service charge will be made to a Holder of a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require a Holder to pay a sum sufficient to pay all transfer tax or similar governmental charges payable in connection therewith (other than any such transfer taxes or similar governmental charges payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 3.10, 4.10, 4.15 and 9.05). The Registrar shall not be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. (3) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange. (4) The Company shall not be required: (A) to issue, to register the transfer of or to exchange any Notes (i) during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection, or (ii) during a period beginning at the opening of business 15 days before any Interest Payment Date and ending at the closing of business on such Interest Payment Date; (B) to register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part; or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date. (5) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary. (6) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02. Section 2.07 Replacement Notes. If any mutilated Note is surrendered to the Trustee or the Company and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee's requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge for its expenses in replacing a Note. Every replacement Note is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder. Section 2.08 Outstanding Notes. The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 2.09, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note; provided that, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be outstanding for purposes of Section 3.07(a). If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser. If the principal amount or Accreted Value of any Note is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue. If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest. Section 2.09 Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, or by any Affiliate of the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that the Trustee knows are so owned shall be so disregarded. Section 2.10 Temporary Notes. Until certificates representing Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Company considers appropriate for temporary Notes and as may be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes. Holders of temporary Notes shall be entitled to all of the benefits of this Indenture. Section 2.11 Cancellation. The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy or return to the Company canceled Notes (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all canceled Notes shall be delivered to the Company. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation. Section 2.12 Defaulted Interest. If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01. The Company shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date may be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. ARTICLE 3. REDEMPTION AND PREPAYMENT Section 3.01 Notices to Trustee. If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07, it must furnish to the Trustee, at least 45 days but not more than 75 days before a redemption date, an Officer's Certificate setting forth: (1) the clause of this Indenture pursuant to which the redemption shall occur; (2) the redemption date; (3) the principal amount of Notes to be redeemed; and (4) the redemption price. Section 3.02 Selection of Notes to Be Redeemed or Purchased. (a) If there is more than one Holder, and if less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee shall select Notes for redemption or purchase as follows: (1) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed; or (2) if the Notes are not listed on any national securities exchange, by lot. (b) In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption or purchase date by the Trustee from the outstanding Notes not previously called for redemption or purchase. (c) The Trustee shall promptly notify the Company in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $1,000 or whole multiples of $1,000; provided that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase. Section 3.03 Notice of Redemption. (a) Subject to the provisions of Sections 3.09 and 3.10, at least 30 days but not more than 60 days before a redemption date, the Company shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 12. (b) The notice shall identify the Notes to be redeemed and shall state: (1) the redemption date; (2) the redemption price; (3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note; (4) the name and address of the Paying Agent; (5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price; (6) that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date; (7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and (8) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes. (c) At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at its expense; provided, however, that the Company has delivered to the Trustee, at least 45 days prior to the redemption date, an Officer's Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph. Section 3.04 Effect of Notice of Redemption. Once notice of redemption is mailed in accordance with Section 3.03, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional. If the Company complies with the provisions of Article 3, on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase. Section 3.05 Deposit of Redemption or Purchase Price. (a) One Business Day prior to the redemption or purchase date, the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to be redeemed or purchased. (b) If a Note is redeemed or purchased on or after an interest record date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption or purchase is not so paid upon surrender for redemption or purchase because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01. Section 3.06 Notes Redeemed or Purchased in Part. Upon surrender of a Note that is redeemed or purchased in part, the Company shall issue and, upon receipt of an Authentication Order, the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered. Section 3.07 Optional Redemption. (a) At any time after the Issue Date and on or before March 15, 2006, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days' notice, at the Accreted Value on the redemption date, plus accrued and unpaid interest to the redemption date. (b) At any time after March 15, 2006, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of Accreted Value) set forth below, plus accrued and unpaid interest to the redemption date, if redeemed during the twelve-month period beginning on March 15 of the years indicated below: Year Percentage ---- ---------- 2006.................................. 104.625% 2007.................................. 103.469% 2008.................................. 102.313% 2009.................................. 101.156% 2010 and thereafter................... 100.000% (c) Any redemption pursuant to this Section 3.07 shall be made in accordance with the provisions of Section 3.01 through 3.06. Any notice to the Holders of Notes of a redemption pursuant to this Section 3.07 shall include the appropriate calculation of the redemption price, but need not include the redemption price itself. The actual redemption price, calculated as described above, shall be set forth in an Officers' Certificate delivered to the Trustee no later than two Business Days prior to the redemption date. Section 3.08 Mandatory Redemption. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes. Section 3.09 Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 4.10, the Company is required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the procedures specified below. (b) Subject to the Intercreditor Agreement, the Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer shall remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company shall apply all Excess Proceeds (the "Offer Amount") to the purchase or redemption of Notes and such other pari passu Indebtedness containing provisions similar to this Section 3.09 (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. (c) If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. (d) Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which shall govern the terms of the Asset Sale Offer, shall state: (1) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 and the length of time the Asset Sale Offer will remain open; (2) the Offer Amount, the offer price and the Purchase Date; (3) that any Note not tendered or accepted for payment shall continue to accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date; (5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 of principal at Stated Maturity only; (6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date; (7) that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (8) that, if the aggregate purchase or redemption price of Notes and other pari passu Indebtedness surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes and other pari passu Indebtedness to be purchased or redeemed on a pro rata basis based on the Accreted Value of Notes and principal of such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 of principal at Stated Maturity, or integral multiples thereof, shall be purchased); and (9) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount at Stated Maturity to that of the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). (e) On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee an Officer's Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.09. The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount at Stated Maturity equal to that of any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. (f) Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made in accordance with the provisions of Sections 3.01 through 3.06. (g) Notwithstanding the foregoing, to the extent the Intercreditor Agreement is in effect, any Asset Sale Offer shall be governed by the terms of the Intercreditor Agreement to the extent that the applicable terms of this Indenture are inconsistent therewith. ARTICLE 4. COVENANTS Section 4.01 Payment of Notes. The Company shall pay or cause to be paid the principal or Accreted Value of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and in this Indenture. Principal, Accreted Value, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by or on behalf of the Company in immediately available funds and designated for and sufficient to pay all principal, Accreted Value, premium, if any, and interest then due. Payments of Accreted Value of the Notes prior to the Stated Maturity of principal of the Notes shall reduce proportionately, for purposes of calculation of interest payable thereon and for future determinations of Accreted Value and principal thereof, the principal amount at Stated Maturity of the Notes with respect to which such payments of Accreted Value have been made. Section 4.02 Maintenance of Office or Agency. (a) The Company shall maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee. (b) The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York, for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. (c) The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03. Section 4.03 Reports. (a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes remain outstanding, the Company shall: (1) provide the Trustee and the Holders with the annual, quarterly and current reports as are required in such Sections 13 and 15(d) to be filed by a United States corporation subject to such Sections in respect of debt securities not listed on an exchange, within 15 days after the times specified for the filing of the information, documents and reports under such Sections; and (2) to the extent permitted, file with the Commission the reports referred to in clause (1) of this Section 4.03(a) within 15 days after the times specified for such filings under the Exchange Act (whether or not applicable to the Company). (b) The quarterly and annual financial information required by Section 4.03(a) shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Management's Discussion and Analysis of Financial Condition and Results of Operations, of condensed consolidating financial information with respect to the financial condition and results of operations of the Company and its Subsidiaries (excluding CPIH and its Subsidiaries) separate from the financial condition and results of operations of the Company and all of its Subsidiaries (including, for that purpose, CPIH and its Subsidiaries). Section 4.04 Compliance Certificate. (a) The Company and each Guarantor (to the extent that such Guarantor is so required under the TIA) shall deliver to the Trustee, within 105 days after the end of each fiscal year, an Officer's Certificate of the Company and such Guarantor, respectively, stating that, in the course of performing his or her duties as officers of the Company or such Guarantor, as applicable, a review of the activities of the Company or such Guarantor and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company or such Guarantor has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company or such Guarantor is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal or Accreted Value of, or interest or premium, if any, on, the Notes are prohibited or if such event has occurred, a description of the event and what action the Company or such Guarantor is taking or proposes to take with respect thereto. (b) So long as not contrary to the then current recommendations of the American Institute of Certified Public Accountants, the year-end financial statements delivered pursuant to Section 4.03(a)(1) shall be accompanied by a written statement of the Company's independent public accountants (who shall be a firm of established national reputation) that in connection with their audit, nothing has come to their attention that caused them to believe that, with respect to financial and accounting matters, the Company failed to comply with any provisions of Article 4 or Article 5 or, if any such event of noncompliance has come to their attention, specifying the nature and period of existence thereof, it being understood that their audit was not directed primarily toward obtaining knowledge of such noncompliance and that such accountants shall not be liable directly or indirectly to any Person for any failure to obtain knowledge of any such noncompliance. (c) So long as any of the Notes are outstanding, the Company shall deliver to the Trustee, within five Business Days after the date on which any Officer of the Company becomes aware of any Default or Event of Default, an Officer's Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto. Section 4.05 Taxes. The Company shall, and shall cause each of its Subsidiaries to, pay or discharge or cause to be paid or discharged, prior to delinquency, all taxes, assessments, and governmental charges levied or imposed upon its or such Subsidiaries' income, profits or property, except such as are contested in good faith and by appropriate proceedings or where stayed by the Bankruptcy Court or other court of competent jurisdiction or where the failure to effect such payment or discharge is not adverse in any material respect to the Holders of the Notes. Section 4.06 Stay, Extension and Usury Laws. The Company and each of the Guarantors covenant (to the extent that it may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture or the Security Documents; and the Company and each of the Guarantors (to the extent that it may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted. Section 4.07 Restricted Payments. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly: (1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Guarantor or, in the case of a Restricted Subsidiary that is not a Guarantor, to the Company or any Restricted Subsidiary); (2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company held by a Person other than the Company or a Restricted Subsidiary of the Company; (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated by its terms in right of payment to the Notes or the Subsidiary Guarantees, except payments of interest or principal at the Stated Maturity thereof; or (4) make any Restricted Investment (all such payments and other actions set forth in these clauses (1) through (4) being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (5) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (6) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in Section 4.09(a); and (7) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10), (11) (other than payments with respect to Equity Interests of the Company or any of its Restricted Subsidiaries), (12) and (13) of Section 4.07(b)), is less than the sum, without duplication, of: (A) 50% of the aggregate Consolidated Net Income of the Company (or, in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit) accrued for the period beginning on the Issue Date and ending on the last day of the Company's most recent fiscal quarter for which financial information is available to the Company ending prior to the date of such proposed Restricted Payment, taken as one accounting period, plus (B) 100% of the aggregate net cash proceeds received by the Company since the Issue Date (x) from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or Disqualified Stock or debt or other securities of the Company that have been converted into or exchanged for such Equity Interests (other than (i) Equity Interests (or Disqualified Stock or convertible or exchangeable debt or other securities) sold to a Subsidiary of the Company or any employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness Guaranteed by the Company or any of its Subsidiaries, and (ii) Disqualified Stock or convertible or exchangeable debt or other securities that have been converted into or exchanged for Disqualified Stock), and (y) as capital contributions from its shareholders, plus (C) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after the Issue Date, the fair market value of such Subsidiary, as determined by the Board of Directors, as of the date of such redesignation, plus (D) the sum of (i) the aggregate amount in cash returned to the Company or any of its Restricted Subsidiaries and (ii) the aggregate principal amount of Indebtedness of the Company or any of its Restricted Subsidiaries cancelled, in each case with respect to Restricted Investments made after the Issue Date whether through interest payments, principal payments, dividends, or other distributions or the forgiveness or cancellation of Indebtedness, plus (E) the net cash proceeds received by the Company or any of its Restricted Subsidiaries from the disposition or sale (other than to a Restricted Subsidiary), or liquidation, retirement or redemption of all or any portion of Restricted Investments made after the Issue Date, plus (F) the net reduction in Investments in Unrestricted Subsidiaries resulting from payments of dividends, repayments of the principal of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Company or any of its Restricted Subsidiaries, plus (G) in the event that the Company or any of its Restricted Subsidiaries makes any Investment in a Person that, as a result of or in connection with such Restricted Investment, becomes a Restricted Subsidiary, an amount equal to such portion of the Company's or any of its Restricted Subsidiaries' existing Investments in such Person that was previously treated as a Restricted Payment. (b) The provisions of Section 4.07(a) will not prohibit: (1) the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions of this Indenture; provided, however, that any such dividend will be included in the calculation of the amount of Restricted Payments (without duplication for declaration); (2) the making of any Restricted Investment or the payment on or with respect to or, the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale of, Equity Interests of the Company (other than (i) Disqualified Stock and (ii) Equity Interests issued or sold to a Restricted Subsidiary of the Company or to any employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness Guaranteed by the Company or any of its Subsidiaries) or out of the net cash proceeds of substantially concurrent capital contributions made to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Investment redemption, repurchase, retirement, defeasance or other acquisition will be excluded from clause (7)(B) of Section 4.07(a); (3) the defeasance (whether legally or as to covenants only), redemption, repurchase or other acquisition of subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or Disqualified Stock of the Company with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (4) the declaration and payment of any dividend by a Restricted Subsidiary of the Company to the holders of such Restricted Subsidiary's Equity Interests on a pro rata basis; (5) the retirement of any shares of Disqualified Stock of the Company by conversion into, or by exchange for, shares of Disqualified Stock of the Company, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of other shares of Disqualified Stock of the Company; provided that the Disqualified Stock of the Company that replaces the retired shares of Disqualified Stock of the Company shall not require the direct or indirect payment of any liquidation preference earlier in time than the final stated maturity of the retired shares of Disqualified Stock of the Company; (6) payments required to be made or otherwise contemplated pursuant to the Plan of Reorganization; (7) payments required to be made pursuant to the CPIH Reimbursement Agreement, the Expense Reimbursement Agreement or the Tax Sharing Agreement; (8) payments in respect of the limited partnership interests in Covanta Onondaga Limited Partnership and Covanta Huntington Limited Partnership pursuant to the limited partnership agreements of such entities as in effect on the Issue Date and as amended, modified or extended on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole; (9) repurchases of Equity Interests deemed to occur upon the exercise of stock options if such Equity Interests represent a portion of the exercise price thereof; (10) payments in satisfaction of earn-out and deferred purchase price obligations pursuant to agreements relating to the acquisition of any Person which, following such acquisition, would be a Restricted Subsidiary of the Company; (11) any Restricted Payments made pursuant to any employee benefit plan, arrangement or perquisite (including plans, arrangements or perquisites for the benefit of directors) or employment agreements or other compensation arrangements, in each case as approved by the Board of Directors in its good faith judgment; (12) the distribution, as a dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Company or a Restricted Subsidiary of the Company by, any Unrestricted Subsidiary of the Company; (13) payments or distributions to dissenting stockholders pursuant to applicable law or pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 5.01; (14) any purchase, redemption, retirement or other acquisition for value of any subordinated Indebtedness pursuant to the provisions of such Indebtedness relating to a change of control or sale of assets; provided that the Company shall have complied with any requirement to make a Change of Control Offer or Asset Sale Offer, as the case may be, in connection with such change of control or sale of assets; and (15) other Restricted Payments in an aggregate amount not to exceed $10.0 million. (c) The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of the Restricted Payment of the assets or securities proposed to be transferred or issued by the Company or any Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any assets or securities that are required to be valued by this covenant shall be determined, in good faith, by the Board of Directors. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $15.0 million and if the Restricted Payment is to be made to an Affiliate of the Company or to the holders of or in respect of any Equity Interest. Not later than the date of making any Restricted Payment having a fair market value exceeding $15.0 million, the Company shall deliver to the Trustee an Officer's Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.07(c) were computed, together with a copy of the fairness opinion or appraisal required by this Indenture. In determining whether any Restricted Payment is permitted by the covenant described above, the Company may in its sole discretion allocate all or any portion of such Restricted Payment among the categories described in the immediately preceding paragraph or among such categories and the types of Restricted Payments described in the first paragraph under the "Restricted Payments" heading above; provided that at the time of such allocation, all such Restricted Payments, or allocated portions thereof, would be permitted under the various provisions of the covenant described above. Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; (2) make loans or advances to the Company or any of its Restricted Subsidiaries; or (3) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries. (b) The provisions of Section 4.08(a) shall not apply to encumbrances or restrictions existing under or by reason of: (1) agreements governing Existing Indebtedness, the Credit Agreements or the Indemnification Agreement as in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those provisions contained in those agreements on the Issue Date; (2) this Indenture, the Notes, the Subsidiary Guarantees and the Security Documents; (3) applicable law, rule, regulation or order; (4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred or issued in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Acquired Debt, such Indebtedness was permitted by the terms of this Indenture to be incurred; (5) customary non-assignment provisions in leases and other agreements entered into in the ordinary course of business; (6) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are materially not more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in the agreements governing the Indebtedness being refinanced; (7) provisions with respect to the disposition or distribution of assets or property held under joint venture agreements, or subject to asset sale agreements, stock sale agreements and other similar agreements; (8) restrictions on cash or other deposits or net worth requirements imposed by customers under contracts or net worth requirements contained in leases and other agreements entered into in the ordinary course of business; (9) customary restrictions with respect to Restricted Subsidiaries of the Company pursuant to agreements creating Permitted Liens or agreements entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of any such Restricted Subsidiary pending the closing of such sale or disposition; provided that such restrictions apply solely to the Capital Stock or assets of the Restricted Subsidiary that are being sold or that are subject to the Permitted Lien; (10) any encumbrance or restriction existing under or by reason of Insurance Premium Financing Arrangements permitted pursuant to Section 4.09; (11) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on that property of the nature described in clause (3) of the preceding paragraph; (12) Liens securing Indebtedness otherwise permitted to be incurred pursuant to Section 4.12 that limit the right of the debtor to dispose of the assets subject to such Liens; (13) Non-Recourse Debt, Limited Recourse Debt, or leases or operating agreements related to Projects, so long as such encumbrances or restrictions relate solely to Project assets and distributions of Project earnings or Project cash flow; (14) any instrument governing any other Indebtedness the incurrence of which is not prohibited by Section 4.09; provided that the terms of such Indebtedness are not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than the provisions with respect to such dividend and other payment restrictions contained in this Indenture at the time of such incurrence; and (15) any encumbrance or restriction of the type referred to in Section 4.08(a) imposed by any extension, amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of an agreement, contract, instrument or obligation referred to in clauses (1) through (14) of this Section 4.08(b) that is not materially more restrictive, taken as a whole, than the encumbrance or restriction imposed by the applicable predecessor agreement, contract, instrument or obligation. Section 4.09 Restrictions on Indebtedness. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, with respect to (collectively, "incur") any Indebtedness (including Acquired Debt); provided, however, that the Company or any Guarantor may incur Indebtedness (including Acquired Debt), and any Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) may incur Acquired Debt not incurred by the acquired Person in contemplation of the related acquisition of such Person by such Restricted Subsidiary, if the Company's Consolidated Coverage Ratio at the time of incurrence of such Indebtedness, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds therefrom, as if the same had occurred at the beginning of the most recently ended four fiscal quarter period of the Company (commencing on or after the Issue Date) for which internal financial statements are available, would have been no less than 2.00 to 1.00. (b) Section 4.09(a) will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"): (1) the incurrence by the Company or any Restricted Subsidiary of Indebtedness and letters of credit under the Credit Agreements in an aggregate principal amount at any one time outstanding (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed $280.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied to repay Indebtedness under the Credit Agreements in order to comply with Section 4.10(b); (2) the incurrence by the Company of Indebtedness consisting solely of its obligations under Insurance Premium Financing Arrangements, which obligations shall not exceed at any time $30.0 million in the aggregate; (3) the incurrence by the Company and its Restricted Subsidiaries of the Existing Indebtedness, including without limitation the Unsecured Notes; (4) the incurrence by the Company and the Guarantors of Indebtedness represented by the Notes and the related Subsidiary Guarantees to be issued on the Issue Date; (5) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in a Permitted Business in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (5), not to exceed $15.0 million at any time outstanding; (6) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance, defease or replace, Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or any of clauses (3), (4), (5), (6), (9), (15), (16) or (18) of this paragraph; (7) the incurrence (i) by the Company or any of the Guarantors of intercompany Indebtedness between or among the Company and any of the Guarantors and (ii) by non-Guarantor Restricted Subsidiaries of the Company of Indebtedness to the Company or a Guarantor in an aggregate net amount not to exceed $20.0 million; provided, however, that (a) if the Company or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes (in the case of the Company) or the related Subsidiary Guarantee (in the case of a Guarantor); and (b) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Guarantor and any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Guarantor will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Guarantor, as the case may be, that was not permitted by this clause (7); (8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations that are incurred for the bona fide purpose of hedging (w) interest rate risk with respect to Indebtedness of the Company or any of its Restricted Subsidiaries permitted to be incurred under this Indenture and which has a notional amount no greater than the payments due with respect to the Indebtedness being hedged thereby, or (x) currency exchange rate risk in connection with then existing financial obligations, or (y) the acquisition of goods or services or (z) against fluctuations in electricity rates pertaining to electricity produced by a Project; and in no event for purposes of speculation; (9) Guarantees provided under Section 4.17 and the Guarantees by the Company or any Restricted Subsidiary of Indebtedness of the Company or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 4.09; (10) (A) Indebtedness incurred in the ordinary course of business solely in respect of bid, surety and similar bonds and standby letters of credit issued for the purpose of supporting workers' compensation liabilities or other insurance obligations of the Company or any of its Restricted Subsidiaries, to the extent that such incurrence does not result in the incurrence of any obligation for the payment of borrowed money to others and (B) Indebtedness owed to, including obligations in respect of letters of credit for the benefit of, any Person in connection with workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance provided by such Person to the Company or a Restricted Subsidiary of the Company, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business; (11) obligations in respect of Performance Guarantees entered into in accordance with Section 4.20; (12) obligations in respect of any Existing IPP International Project Guaranties; (13) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business, and such Indebtedness is extinguished within five business days after incurrence thereof; (14) Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earn-out or other similar obligations, in each case, incurred or assumed in connection with the disposition of any business or assets or a Subsidiary of the Company; (15) Indebtedness of the Company or any of its Restricted Subsidiaries, to the extent the net proceeds thereof are promptly (a) used to purchase Notes tendered pursuant to a Change of Control Offer under Section 4.15 or (b) deposited to defease the Notes in accordance with Article 8; (16) the incurrence by the Company or any of its Restricted Subsidiaries of Non-Recourse Debt or Limited Recourse Debt, in an aggregate amount not to exceed the greater of (i) $40.0 million and (ii) 33% of the aggregate reduction in principal amount of Non-Recourse Debt and Limited Recourse Debt in existence on the Issue Date, up to a maximum amount of $150.0 million, at any time outstanding; (17) the incurrence by any Restricted Subsidiary of the Company of Limited Recourse Debt relating to waste-to-energy Projects, so long as the incurrence by such Restricted Subsidiary of such Limited Recourse Debt is required, as evidenced by a resolution of the Board of Directors, by the existing client (if such client is a governmental authority) of the relevant Project; provided that during the continuance of an Event of Default, the Company and its Restricted Subsidiaries shall not enter into any new commitments for any such Indebtedness; (18) Non-Recourse Debt or Limited Recourse Debt incurred by any of the Company's Restricted Subsidiaries, the net proceeds of which are used to repay, redeem or repurchase the Notes or any other secured unsubordinated Indebtedness of the Company; and (19) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (19), not to exceed $30.0 million at any time outstanding. (c) For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clause (1) through (19) of Section 4.09(b), or is permitted to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. The maximum amount of Indebtedness that the Company or any of its Restricted Subsidiaries may incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in currency exchange rates. Indebtedness under the Credit Agreements, including Guarantees of such Indebtedness, on the Issue Date will be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of Section 4.09(b). (d) Accrual of interest or dividends, the accretion of accreted value or original issue discount and the payment of interest or dividends in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09. (e) For purposes of determining compliance with any U.S. dollar-denominated restriction on Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency will be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that (1) the U.S. dollar-equivalent principal amount of any such Indebtedness outstanding or committed on the Issue Date will be calculated based on the relevant currency exchange rate in effect on the Issue Date of this Indenture, and (2) if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency than the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing. Section 4.10 Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: (1) the Company (or such Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; (2) the fair market value is determined by the Board of Directors and evidenced by a resolution of the Board of Directors and, if such fair market value is in excess of $15.0 million, is set forth in an Officer's Certificate delivered to the Trustee; and (3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this clause (3), each of the following shall be deemed to be cash: (A) any liabilities, as shown on the Company's most recent consolidated balance sheet, of the Company or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability; (B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee converted by the Company or such Restricted Subsidiary within 90 days into cash or Cash Equivalents, to the extent of the cash and Cash Equivalents received in that conversion; and (C) any Voting Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(b). (b) Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary may, at its option and to the extent it elects, apply (i) 33% of all such Net Proceeds received after the Issue Date and until the aggregate Net Proceeds received by the Company and all of its Restricted Subsidiaries equal $7.5 million, and (ii) thereafter, 100% of such Net Proceeds: (1) to repay or cash collateralize Bank Indebtedness and, to the extent the Bank Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; (2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, a Permitted Business, or to make a Permitted Investment in another Person that is engaged in a Permitted Business; (3) to make capital expenditures that are used or useful in a Permitted Business; (4) to acquire other assets that are used or useful in a Permitted Business; or (5) any combination of the foregoing; provided that the Company and any such Restricted Subsidiary will be deemed to have applied such Net Proceeds in accordance with clause (2) or clause (4) of this Section 4.10(b) if, within 365 days after the date of such Asset Sale, the Company or such Restricted Subsidiary shall have entered into, and not abandoned or rejected, a binding agreement with respect to an acquisition, expenditure or Investment that would result in such application of such Net Proceeds and that acquisition, expenditure or Investment is thereafter completed within 455 days after the date of such Asset Sale. (c) Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. (d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b), other than Net Proceeds not required to be applied or invested in the manner specified in Section 4.10(b), shall constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall , to the extent permitted under the Intercreditor Agreement, make an Asset Sale Offer to all Holders of Notes and to all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase or redeem the maximum principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the Accreted Value plus accrued and unpaid interest on the Notes to be purchased, to the date fixed for the closing of such Asset Sale Offer in accordance with the procedures set forth in this Indenture, and shall be payable in cash. If the date of purchase is on or after an interest record date and on or before the related Interest Payment Date, accrued and unpaid interest, if any, shall be paid to the Holder in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender pursuant to the Asset Sale Offer. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate Accreted Value of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. (e) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such conflict. (f) Notwithstanding the foregoing, to the extent the Intercreditor Agreement is in effect, any Asset Sale shall be governed by the terms of the Intercreditor Agreement to the extent that the applicable terms of this Indenture are inconsistent therewith. Section 4.11 Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any of its Affiliates (each, an "Affiliate Transaction"), unless: (1) the Affiliate Transaction is on terms that are no less favorable to the Company or such Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and (2) the Company delivers to the Trustee: (A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, a resolution of the Board of Directors set forth in an Officer's Certificate certifying that such Affiliate Transaction complies with this Section 4.11 and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction; and (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $15.0 million, an opinion as to the fairness to the Company and its Restricted Subsidiaries of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. (b) The following transactions will not be deemed to be Affiliate Transactions and therefore will not be subject to the provisions of Section 4.11(a): (1) any Restricted Payment permitted to be made pursuant to Section 4.07 and any Permitted Investment; (2) payments made pursuant to the CPIH Reimbursement Agreement, the Expense Reimbursement AgreemenIt or the Tax Sharing Agreement; (3) any employment, service or termination agreement entered into in the ordinary course of business; (4) any issuance of Equity Interests (other than Disqualified Stock), or other payments, awards or grants in cash, Equity Interests (other than Disqualified Stock) or otherwise pursuant to, or the funding of, employment arrangements, employee stock options and employee stock ownership plans approved by the Board of Directors; (5) loans or advances to employees of the Company or its Subsidiaries in the ordinary course of business permitted by clause (7) of the definition of Permitted Investments; (6) the payment or provision of reasonable fees, compensation or employee benefit plans, arrangements or perquisites to, and any indemnity provided for the benefit of, directors, officers, consultants or employees of the Company or any Subsidiary in the ordinary course of business; (7) any transaction between or among the Company and its Restricted Subsidiaries or between Restricted Subsidiaries of the Company; (8) transactions with customers, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, in each case which are in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture, and which are fair to the Company and its Restricted Subsidiaries, as applicable, in the reasonable determination of the Board of Directors; (9) transactions with the Investor Parties pursuant to the Indemnification Agreement, the Second Lien Letter of Credit Facility and any other agreement in existence on the Issue Date, between the Company, DHC or any Investor Party, as such agreement may thereafter be amended, modified, restated, renewed, extended, refinanced, refunded or replaced, as applicable, on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than those terms in effect on the Issue Date, and any such amendment, modification, restatement, renewal, extension, refinancing, refunding or replacement; (10) transactions with CPIH and its Subsidiaries pursuant to agreements in existence or entered into on the Issue Date, as such agreements may thereafter be amended, modified, restated, renewed, extended, refinanced, refunded or replaced, as applicable, on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms of such agreements as in effect on the Issue Date, and any such amendment, modification, restatement, renewal, extension, refinancing, refunding or replacement; (11) transactions pursuant to any other arrangement, contract or agreement in existence on the Issue Date, as such arrangement, contract or agreement may thereafter be amended, modified, restated, renewed, extended, refinanced, refunded or replaced from time to time; provided that any such amendment, modification, restatement, renewal, extension, refinancing, refunding or replacement is on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the arrangement, contract or agreement in existence on the Issue Date; and (12) sales of Equity Interests, other than Disqualified Stock, of the Company to Affiliates of the Company. Section 4.12 Liens. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien of any kind securing Indebtedness or trade payables on any asset now owned or hereafter acquired, except Permitted Liens. (b) If the Company or any of its Restricted Subsidiaries shall create, incur, assume or suffer to exist any such Lien not permitted by the provisions of Section 4.12(a), the Company and such Restricted Subsidiary (i) shall be deemed to have automatically and without further action secured the Obligations under the Notes with such Lien equally and ratably with any and all other Indebtedness secured thereby as long as any such Indebtedness shall be so secured, and (ii) shall take or cause to be taken such actions as Holders deem necessary or advisable to evidence such equal and ratable Lien; provided that, notwithstanding the foregoing, this covenant shall not be construed as a consent by Holders to the creation of any such Lien not permitted by the provisions of Section 4.12(a) and the creation or assumption of any such Lien not permitted by the provisions of Section 4.12(a) shall constitute an Event of Default. Section 4.13 Business Activities. The Company shall not, and shall not permit any of its Subsidiaries to, engage in any business other than Permitted Businesses, except to such extent as would not be material to the Company and its Subsidiaries taken as a whole. Section 4.14 Corporate Existence. Subject to Article 5, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect: (1) its corporate existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective or organizational documents (as the same may be amended from time to time) of the Company or any such Restricted Subsidiary; and (2) the material rights (charter and statutory), licenses and franchises of the Company and its Restricted Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, of the Company or any of its Restricted Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not materially adverse to the Holders of the Notes or such action as is otherwise permitted by this Indenture. Section 4.15 Offer to Repurchase Upon Change of Control. (a) Subject to the Company's right to redeem the Notes pursuant to Section 3.07, upon the occurrence of a Change of Control, the Company shall make an offer (a "Change of Control Offer") to each Holder to repurchase all or any part (in a minimum aggregate principal amount at Stated Maturity of $1,000 or an integral multiple of $1,000) of such Holder's Notes at a purchase price in cash equal to 101% of the Accreted Value of the Notes repurchased plus accrued and unpaid interest on the Notes repurchased to the date of repurchase (the "Change of Control Payment"). Within 10 days following any Change of Control, if the Company has not sent a redemption notice pursuant to Section 3.03 for all of the Notes, the Company shall mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and stating: (1) that the Change of Control Offer is being made pursuant to this Section 4.15 and that all Notes tendered will be accepted for payment; (2) the purchase price and the purchase date, which date shall be no earlier than 30 days and no later than 60 days after the date on which such notice is mailed (the "Change of Control Payment Date"); (3) that any Note not tendered shall continue to accrue interest; (4) that, unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date; (5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer shall be required to surrender the Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders shall be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder; the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and (7) that Holders whose Notes are being purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. (b) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change in Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Sections 3.09, 3.10 or 4.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 3.09, 3.10 or this Section 4.15 by virtue of such conflict. (c) On the Change of Control Payment Date, the Company shall, to the extent lawful: (1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer; (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and (3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer's Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company. Any Note so accepted for payment shall cease to accrue interest on and after the Change of Control Payment Date. (d) The Paying Agent shall promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note shall be in a minimum aggregate principal amount of $1,000 or an integral multiple thereof. If the Change of Control Payment Date is on or after an interest record date and on or before the related Interest Payment Date, accrued and unpaid interest, if any, shall be paid to the Holder in whose name a note is registered at the close of business on such record date, and no additional interest shall be payable to the holders who tender pursuant to the Change of Control Offer. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. (e) Notwithstanding anything to the contrary in this Section 4.15, the Company shall not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 and Section 3.10 and purchases all Notes validly tendered and not withdrawn under the Change of Control Offer. Section 4.16 Payments for Consent. The Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture, the Notes or the Security Documents unless such consideration is offered to be paid and is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. Section 4.17 Additional Subsidiary Guarantees and Liens. If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic Subsidiary after the Issue Date, excluding any Subsidiary that has been properly designated as an Unrestricted Subsidiary in accordance with this Indenture for so long as it continues to constitute an Unrestricted Subsidiary, then that newly acquired or created Domestic Subsidiary shall become a Guarantor and (a) execute a supplemental indenture and deliver an Opinion of Counsel reasonably satisfactory to the Trustee within 10 Business Days of the date on which it was acquired or created, (b) if such Domestic Subsidiary grants any Lien upon any of its assets and property as security for any Credit Agreement Obligations, execute any and all further Security Documents, financing statements, agreements and instruments, upon substantially the same terms as the security documents in respect of such Credit Agreement Obligations, but subject to the Intercreditor Agreement, that grants the Trustee a third-priority Lien upon such assets and property for the benefit of the Holders and take all such actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents) that may be required under any applicable law, or which the Trustee may reasonably request to create such third-priority Lien, all at the expense of the Company, including all reasonable fees and expenses of counsel incurred by the Trustee in connection therewith, and (c) deliver to the Trustee an Opinion of Counsel, reasonably satisfactory to the Trustee, that such Guarantee and any such Security Documents, as the case may be, are valid, binding and enforceable obligations of such Subsidiary, subject to customary exceptions for bankruptcy, fraudulent conveyance and equitable principles. Section 4.18 Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary properly so designated will be deemed to be an Investment made as of the time of the designation and shall reduce the amount available for Restricted Payments under the first paragraph of Section 4.07 or Permitted Investments, as determined by the Company. Such a designation shall only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the criteria for being an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would not cause a Default. Section 4.19 Limitation on Sale and Leaseback Transactions. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any Sale/Leaseback Transaction; provided that the Company or any Restricted Subsidiary may enter into a Sale/Leaseback transaction if: (1) the Company or that Restricted Subsidiary, as applicable, could have incurred Indebtedness in an amount equal to the Attributable Debt relating to such Sale/Leaseback Transaction in compliance with Section 4.09; (2) the gross cash proceeds of such Sale/Leaseback Transaction are at least equal to the fair market value (in the case of gross cash proceeds in excess of $5.0 million, as determined in good faith by the Board of Directors, and as so determined by the Board of Directors and set forth in an Officer's Certificate delivered to the Trustee in the case of gross cash proceeds in excess of $15.0 million), of the property that is the subject of such Sale/Leaseback Transaction; and (3) the transfer of assets in such Sale/Leaseback Transaction is permitted by, and the Company applies the proceeds of such transaction in compliance with, Section 4.10. Section 4.20 Limitation on Performance Guarantees. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or become obligated with respect to any Performance Guarantee other than Performance Guarantees which are unsecured and which: (1) are in effect on the Issue Date; (2) replace, renew or extend Performance Guarantees permitted pursuant to clause (1) above; (3) support Expansions of existing waste-to-energy Projects; or (4) are required in connection with waste-to-energy Projects undertaken by the Company or any of its Restricted Subsidiaries after the Issue Date (i) with respect to which the Company's or such Restricted Subsidiary's Investment therein constitutes a Permitted Investment or a Restricted Payment not prohibited by Section 4.07 or (ii) in which neither the Company nor any of its Restricted Subsidiaries has any Investment. Section 4.21 Payment of Additional Interest The Company shall apply for and use reasonable business efforts to obtain and maintain ratings of the Notes from both Moody's and S&P. If the Notes have not been rated by either Moody's or S&P within 90 days after the Issue Date, the Company shall pay, as additional interest on the Notes, an amount equal to 0.25% of the principal amount of the Notes at maturity until a rating is obtained from one or both of Moody's or S&P. Such additional interest shall be computed in the same manner and shall be payable at the same times and to the same Persons as other interest on the Notes. Any failure by the Company to obtain or maintain the ratings required by this Section 4.21 solely as a result of the inaction or refusal to act by any such rating agency that is beyond the control of the Company shall not constitute a breach of this Section 4.21 or require the payment of such additional interest. The Company shall give prompt written notice to the Trustee of the occurrence of any event requiring the payment of additional interest pursuant to this Section 4.21. ARTICLE 5. SUCCESSORS Section 5.01 Merger, Consolidation, or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless: (1) either: (a) the Company is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (2) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this Indenture, pursuant to a supplemental indenture or other agreements reasonably satisfactory to the Trustee; (3) immediately after giving effect to such transaction no Default or Event of Default exists; (4) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (i) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in the first paragraph of Section 4.09(a) or (ii) (A) would have a Consolidated Coverage Ratio greater than the Consolidated Coverage Ratio of the Company immediately prior to such transaction and without taking into account such transaction and any related financing transactions and (B) has received and delivered to the Trustee letters from Moody's and S&P stating that the Notes, after giving effect to such transaction and any related financing transactions, will be rated at least "Ba1" and "BB+" by such agencies, respectively; and (5) the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, comply with this Indenture. (b) In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. This Section 5.01 will not prohibit (i) any sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and any Guarantor, (ii) any Restricted Subsidiary from consolidating with, merging into or transferring all or part of its assets to the Company or any Guarantor, or (iii) the Company from merging with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or other benefits. (c) In the event of any transaction (other than a lease) described in and complying with the conditions listed in the immediately preceding paragraph in which the Company is not the surviving Person and the surviving Person is to assume all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture, such surviving Person shall succeed to, and be substituted for, and may exercise every right and power of, the Company, and the Company would be discharged from its obligations under this Indenture and the Notes. Section 5.02 Successor Corporation Substituted. Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.01, the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the "Company" shall refer instead to the successor corporation and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal or Accreted Value of, and interest and premium, if any, on, the Notes except in the case of a sale of all of the Company's assets in a transaction that is subject to, and that complies with the provisions of, Section 5.01. ARTICLE 6. DEFAULTS AND REMEDIES Section 6.01 Events of Default. Each of the following is an "Event of Default": (1) the Company defaults for 30 consecutive days in the payment when due of interest on the Notes; (2) the Company defaults in payment when due of the principal or Accreted Value of, or premium, if any, on the Notes; (3) failure by the Company or any of its Restricted Subsidiaries to comply with its obligations to make any Change of Control Payment pursuant to Section 4.15 or to comply with the provisions of Section 5.01; (4) failure by the Company or any of its Restricted Subsidiaries for 30 days after written notice from the Trustee or Holders of at least 25% in aggregate principal amount of the outstanding Notes to comply with the provisions of any of Sections 4.07, 4.09 or 4.10; (5) failure by the Company or any of its Restricted Subsidiaries for 60 days after written notice from the Trustee or Holders of at least 25% in aggregate principal amount of the outstanding Notes to comply with any of the other agreements in this Indenture or the Security Documents; (6) default under any mortgage, indenture, agreement or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness of the Company or any of its Restricted Subsidiaries whether such Indebtedness now exists, or is created after the Issue Date, if that default: (A) is caused by a failure to pay principal of or liquidation preference of such Indebtedness at the final stated maturity thereof (giving effect to any applicable grace periods and any extensions thereof); or (B) results in the acceleration of such Indebtedness prior to its express maturity; or (C) results in a requirement that the Company or any of its Restricted Subsidiaries collateralize any letter of credit thereunder and the Company or such Restricted Subsidiary fails to provide the required collateral on the terms and within the times set forth therein (giving effect to any applicable grace periods and any extensions thereof); and, in each case, if the principal amount of such Indebtedness or the amount of such collateralization requirement aggregates $20.0 million or more; (7) any final judgment or judgments for the payment of money in an aggregate amount in excess of $10.0 million (or its foreign currency equivalent at the time) in excess of amounts which the Company's insurance carriers have agreed to pay under applicable policies shall have been rendered against the Company or any Restricted Subsidiary of the Company that is a Significant Subsidiary and shall not have been waived, satisfied, bonded or discharged for any period of 60 consecutive days during which a stay of enforcement is not in effect; (8) the Company or any Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case; (B) consents to the entry of an order for relief against it in an involuntary case; (C) consents to the appointment of or taking possession by a custodian, receiver, liquidator, trustee, assignee or sequestrator of it or for all or substantially all of its property; or (D) makes a general assignment for the benefit of its creditors; or (9) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Company or any Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken as a whole, would constitute a Significant Subsidiary in an involuntary case; or (B) appoints a custodian, receiver, liquidator, trustee, assignee or sequestrator of the Company or any Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) that is a Significant Subsidiary or for all or substantially all of the property of the Company or any Restricted Subsidiary of the Company that is a Significant Subsidiary or, in either case, any group of Restricted Subsidiaries of the Company that, taken as a whole, would constitute a Significant Subsidiary; or (C) orders the liquidation of the Company or any Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken as a whole, would constitute a Significant Subsidiary; and the order or decree remains unstayed and in effect for 60 consecutive days; or (D) (a) any Subsidiary Guarantee or any Security Document or any security interest granted thereby is held in any judicial proceeding to be unenforceable or invalid, or ceases for any reason to be in full force and effect and such default continues for ten days after written notice, or (b) the Company or any Guarantor, or any Person acting on behalf of the Company or any Guarantor, denies or disaffirms its obligations under any Subsidiary Guarantee or Security Document. Section 6.02 Acceleration. (a) In the case of an Event of Default specified in clauses (8) or (9) of Section 6.01, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount at Stated Maturity of the then outstanding Notes may declare all the Notes to be due and payable immediately. Upon any such declaration the Notes shall become due and payable immediately. The amount due and payable with respect to principal of the Notes upon any acceleration hereunder shall be the Accreted Value of the Notes as of the date of acceleration. (b) In the event of a declaration of acceleration of the Notes because an Event of Default has occurred and is continuing as a result of the acceleration of any Indebtedness described in clause (6) of Section 6.01, the declaration of acceleration of the Notes shall be automatically annulled if the holders of any Indebtedness described in clause (6) of Section 6.01 have rescinded the declaration of acceleration in respect of the Indebtedness within 30 days of the date of the declaration and if: (1) the annulment of the acceleration of Notes would not conflict with any judgment or decree of a court of competent jurisdiction; and (2) all existing Events of Default, except nonpayment of principal or interest on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived. (c) The Holders of a majority in aggregate principal amount at Stated Maturity of the then outstanding Notes by written notice to the Trustee may on behalf of all of the Holders rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or premium that has become due solely because of the acceleration) have been cured or waived. (d) If an Event of Default occurs by reason of any willful action (or inaction) taken (or not taken) by or on behalf of the Company with the intention of avoiding payment of the premium that the Company would have had to pay if the Company then had elected to redeem the Notes pursuant to Section 3.07, then, upon acceleration of the Notes, an equivalent premium, based upon the Accreted Value of the Notes as of the date of acceleration, shall also become and be immediately due and payable, to the extent permitted by law, anything in this Indenture or in the Notes to the contrary notwithstanding. Section 6.03 Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal or Accreted Value of and premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All remedies are cumulative to the extent permitted by law. Section 6.04 Waiver of Past Defaults. Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal or Accreted Value of or premium or interest on, the Notes, including in connection with an offer to purchase (other than a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount at Stated Maturity of the then outstanding Notes); provided, however, that the Holders of a majority in aggregate principal amount at Stated Maturity of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. Section 6.05 Control by Majority. Holders of a majority in aggregate principal amount at Stated Maturity of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law, this Indenture or the Security Documents that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal liability and may take any other action it deems proper that is not inconsistent with such direction. Section 6.06 Limitation on Suits. (a) A Holder of a Note may pursue a remedy with respect to this Indenture or the Notes only if: (1) the Holder of a Note gives to the Trustee written notice of a continuing Event of Default; (2) the Holders of at least 25% in aggregate principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy; (3) such Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense; (4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision of indemnity; and (5) during such 60-day period the Holders of a majority in principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent with the request. A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note. Section 6.07 Rights of Holders of Notes to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal or Accreted Value of, and premium, if any, and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. Section 6.08 Collection Suit by Trustee. If an Event of Default specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal or Accreted Value of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. Section 6.09 Trustee May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. Section 6.10 Priorities. (a) If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order: First: to the Trustee, its agents and attorneys (including any Collateral Agent) for amounts due under Section 7.07, including payment of all compensation, expense and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection; Second: to Holders of Notes for amounts due and unpaid on the Notes for principal or Accreted Value, premium and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal or Accreted Value, premium and interest, respectively; and Third: to the Company or to such party as a court of competent jurisdiction shall direct. (b) The Trustee may, upon prior written notice to the Company, fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10. Section 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee or any Collateral Agent for any action taken or omitted by it as Trustee or as Collateral Agent, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee or by any Collateral Agent, a suit by a Holder of a Note pursuant to Section 6.07, or a suit by Holders of more than 25% in principal amount of the then outstanding Notes. ARTICLE 7. TRUSTEE Section 7.01 Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (b) Except during the continuance of an Event of Default known to the Trustee: (1) the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture. (c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (1) this paragraph does not limit the effect of paragraph (b) of this Section 7.01; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and (3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05. (d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to the provisions of this Article 7. (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder has offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense. (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. Section 7.02 Rights of Trustee. (a) The Trustee may conclusively rely upon any document reasonably believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrains from acting, it may require an Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer's Certificate or Opinion of Counsel. The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. (c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. (d) The Trustee shall not be liable for any action it reasonably takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture, provided, however, that the Trustee's conduct does not constitute willful misconduct or negligence. (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company. (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction. Section 7.03 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11. Section 7.04 Trustee's Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company's use of the proceeds from the Notes or any money paid to the Company or upon the Company's direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication. The Trustee shall not be responsible for and makes no representation as to the value or condition of the Collateral or any part thereof, or as to the title of the Company thereto, or as to the security afforded thereby or hereby, or as to the validity or genuineness of any Collateral pledged and deposited with the Trustee. The Trustee makes no representation with respect to the effectiveness or adequacy of the Security Documents, or the validity or perfection, if any of Liens granted under this Indenture or the Security Documents. The Trustee shall not be responsible for independently ascertaining or maintaining such validity or perfection, if any and shall be fully protected in relying upon certificates and opinions delivered to it in accordance with the terms of this Indenture or the Security Documents. Section 7.05 Notice of Defaults. If a Default or Event of Default occurs and is continuing and the Trustee receives actual notice of such event, the Trustee shall mail to the Holders of the Notes, as their names and addresses appear on the Noteholder list described in Section 2.05, a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, premium or interest on any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes. Section 7.06 Reports by Trustee to Holders. (a) Within 60 days after each May 15 beginning May 15, 2005, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such reporting date that complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also will comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail all reports as required by TIA ss. 313(c). (b) A copy of each report at the time of its mailing to the Holders of Notes shall be mailed by the Trustee to the Company and filed by the Trustee with the Commission and each stock exchange, if any, on which the Notes are listed in accordance with TIA ss. 313(d). The Company shall promptly notify the Trustee when the Notes are listed on any stock exchange and of any delisting thereof. Section 7.07 Compensation and Indemnity. (a) The Company shall pay to the Trustee such compensation for its acceptance of this Indenture and services hereunder as agreed from time to time by the Company and the Trustee. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee's agents and counsel. (b) The Company and each Guarantor shall indemnify the Trustee and any Collateral Agent, and hold them harmless, against any and all losses, liabilities or expenses incurred by them arising out of or in connection with the acceptance or administration of their duties under this Indenture, including the reasonable costs and expenses of enforcing this Indenture against the Company and the Guarantors (including this Section 7.07) and defending themselves against any claim (whether asserted by the Company, the Guarantors or any Holder or any other Person) or liability in connection with the exercise or performance of any of their powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to their negligence or bad faith. The Trustee (or, if the claim is against a Collateral Agent, the applicable Collateral Agent) shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee or a Collateral Agent to so notify the Company shall not relieve the Company or any of the Guarantors of their obligations hereunder. The Company or such Guarantor shall defend the claim and the Trustee (or the Collateral Agent, as applicable) shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. Neither the Company nor any Guarantor need pay for any settlement made without its consent, which consent shall not be unreasonably withheld. (c) The obligations of the Company and the Guarantors under this Section 7.07 shall survive the satisfaction and discharge of this Indenture, resignation or removal of any Trustee and the discharge of the Company's obligations pursuant to Article 8 hereof. (d) To secure the Company's payment obligations in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture. (e) When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(8) or (9) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) shall be preferred over the status of the Holders in a proceeding under any Bankruptcy Law, and are intended to constitute expenses of administration under any Bankruptcy Law. (f) The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to the extent applicable. Section 7.08 Replacement of Trustee. (a) A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section 7.08. (b) The Trustee may resign, upon 30 days written notice to the Company, in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if: (1) the Trustee fails to comply with Section 7.10; (2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; (3) a custodian or public officer takes charge of the Trustee or its property; or (4) the Trustee becomes incapable of acting. (c) If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company. (d) If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 25% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee. (e) If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (f) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company's obligations under Section 7.07 shall continue for the benefit of the retiring Trustee. Section 7.09 Successor Trustee by Merger, etc. If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee. Section 7.10 Eligibility; Disqualification. (a) There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $100 million as set forth in its most recent published annual report of condition. (b) This Indenture shall always have a Trustee who satisfies the requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss. 310(b). Section 7.11 Preferential Collection of Claims Against Company. The Trustee is subject to TIA ss. 311(a), excluding any creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be subject to TIA ss. 311(a) to the extent indicated therein. ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, at the option of the Board of Directors evidenced by a resolution set forth in an Officer's Certificate, at any time, elect to have either Section 8.02 or 8.03 be applied to all outstanding Notes (including the Subsidiary Guarantees) upon compliance with the conditions set forth below in this Article 8. Section 8.02 Legal Defeasance and Discharge. (a) Upon the Company's exercise under Section 8.01 of the option applicable to this Section 8.02 and subject to the satisfaction of the conditions set forth in Section 8.04, the Guarantees shall be released and the Company and each of the Guarantors shall be deemed to have been discharged from their obligations with respect to all outstanding Notes (including the Subsidiary Guarantees) on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes (including the Subsidiary Guarantees), which shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in clauses (1) and (2) below, and to have satisfied all their other obligations under such Notes, the Subsidiary Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of outstanding Notes to receive payments in respect of the principal of, or interest or premium, if any, on such Notes when such payments are due from the trust referred to in Section 8.04; (2) the Company's obligations with respect to such Notes under Article 2 and Section 4.02; (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's and the Guarantors' obligations in connection therewith; and (4) this Article 8. (b) Subject to compliance with this Article 8, the Company may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03. Section 8.03 Covenant Defeasance. Upon the Company's exercise under Section 8.01 of the option applicable to this Section 8.03, the Company and its Restricted Subsidiaries shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from each of their obligations under the covenants contained in Sections 3.09, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20 and 4.21 and clause (4) of Section 5.01(a) and the first sentence of Section 5.01(b) with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes and Subsidiary Guarantees, the Company and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture and such Notes and Subsidiary Guarantees shall be unaffected thereby. In addition, upon the Company's exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, Sections 6.01(3) through 6.01(6) will not constitute Events of Default. Section 8.04 Conditions to Legal or Covenant Defeasance. (a) In order to exercise either Legal Defeasance or Covenant Defeasance under either Section 8.02 or 8.03: (1) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in United States dollars, non-callable Government Securities, or a combination thereof, in such amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal or Accreted Value of, and premium, if any, and interest on the outstanding Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a particular redemption date; (2) in the case of an election under Section 8.02, the Company must deliver to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that: (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (3) in the case of an election under Section 8.03, the Company must deliver to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit); (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; (6) the Company must deliver to the Trustee an Officer's Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others; and (7) the Company must deliver to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with. (b) Notwithstanding the foregoing, the Opinion of Counsel required by clause (7) of Section 8.04(a) need not be delivered if all Notes not therefore delivered to the Trustee for cancellation (i) have become due and payable or (ii) will become due and payable on their maturity date within one year under arrangements satisfactory to the Trustee for the giving of notice of assumption by the Trustee in the name, and at the expense, of the Company. Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions. (a) Subject to Section 8.06, all money and noncallable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the "Trustee") pursuant to Section 8.04 in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium (if any) and interest, but such money need not be segregated from other funds except to the extent required by law. (b) The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. (c) Notwithstanding anything in this Article 8 to the contrary, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or non-callable Government Securities held by it as provided in Section 8.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. Section 8.06 Repayment to Company. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or premium or interest on any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter be permitted to look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company. Section 8.07 Reinstatement. If the Trustee or Paying Agent is unable to apply any United States dollars or non-callable Government Securities in accordance with Section 8.02 or 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's and the Guarantor's obligations under this Indenture and the Notes and the Subsidiary Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or 8.03, as the case may be; provided, however, that, if the Company makes any payment of principal or Accreted Value of or premium or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent. ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER Section 9.01 Without Consent of Holders of Notes. (a) Notwithstanding Section 9.02, the Company, the Guarantors and the Trustee may amend or supplement this Indenture, the Subsidiary Guarantees, the Notes or the Security Documents without the consent of any Holder of a Note: (1) to cure any ambiguity, defect or inconsistency; (2) to provide for uncertificated Notes in addition to or in place of certificated Notes; (3) to provide for the assumption of the Company's obligations to Holders of Notes in the case of a merger or consolidation or sale of all or substantially all of the Company's assets; (4) to make any change that would provide any additional rights or benefits to the Holders of Notes or that would not adversely affect the legal rights under this Indenture of any such Holder; (5) to comply with requirements of the Commission in order to effect or maintain the qualification of this Indenture under the TIA; (6) to allow any Guarantor to execute a supplemental indenture and/or a Subsidiary Guarantee with respect to the Notes; or (7) if necessary, in connection with any addition or release of Collateral permitted under the terms of this Indenture or the Security Documents. (b) Upon the request of the Company accompanied by a resolution of the Board of Directors authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the Trustee of the documents described in Section 7.02, the Trustee shall join with the Company and the Guarantors in the execution of any amended or supplemental Indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental Indenture that affects its own rights, duties or immunities under this Indenture or otherwise. (c) The Company shall be entitled to releases of the Collateral or the Guarantees as described in Sections 10.03, 11.05 and 11.06. Section 9.02 With Consent of Holders of Notes. (a) Except as provided below in this Section 9.02, the Company, the Guarantors and the Trustee may amend or supplement any provision of this Indenture, the Subsidiary Guarantees, the Notes or the Security Documents with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding voting as a single class (including, without limitation, consents obtained in connection with a purchase of or a tender offer or exchange offer for the Notes), and, subject to Sections 6.04 and 6.07, any existing Default or compliance with any provision of this Indenture, the Notes or the Security Documents may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 shall determine which Notes are considered to be "outstanding" for purposes of this Section 9.02. (b) Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental Indenture or other amendment, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02, the Trustee shall join with the Company in the execution of such amended or supplemental Indenture or other amendment unless such amended or supplemental Indenture or other amendment directly affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental Indenture or other amendment. (c) It is not necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it is sufficient if such consent approves the substance thereof. (d) After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07, the Holders of a majority in aggregate principal amount of the Notes then outstanding voting as a single class may waive compliance in a particular instance by the Company with any provision of this Indenture, the Notes or the Security Documents. However, without the consent of each Holder affected, an amendment or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder): (1) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver; (2) reduce the principal or Accreted Value of or change the stated maturity of any Note or alter or waive any of the provisions with respect to the redemption or repurchase of the Notes; (3) reduce the rate of or change the time for payment of interest, including default interest, on any Note; (4) waive a Default or Event of Default in the payment of principal or Accreted Value of or premium or interest on the Notes (except a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment default that resulted from such acceleration); (5) make any Note payable in money other than that stated in this Indenture; (6) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal or Accreted Value of, or interest or premium on, the Notes; (7) waive a redemption payment with respect to any Note other than a payment required by Sections 3.09, 4.10 and 4.15; (8) subordinate in right of payment the Notes or any Subsidiary Guarantee to any other Indebtedness of the Company or any Guarantor; or (9) make any change in the preceding amendment and waiver provisions; (e) Any amendment to, or waiver of, the provisions of this Indenture or the Security Documents relating to the release of any Guarantor from any of its Obligations under its Guarantee, this Indenture or the Security Documents, except in accordance with the terms of this Indenture, shall require the consent of the Holders of at least 75% in aggregate principal amount of Notes then outstanding. Section 9.03 Compliance with Trust Indenture Act. Every amendment or supplement to this Indenture or the Notes shall be set forth in a amended or supplemental Indenture that complies with the TIA as then in effect. Section 9.04 Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder's Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder. Section 9.05 Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note will not affect the validity and effect of such amendment, supplement or waiver. Section 9.06 Trustee to Sign Amendments, etc. The Trustee shall sign any amended or supplemental Indenture or other amendment authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Company may not sign an amended or supplemental Indenture or other amendment until the Board of Directors approves it. In executing any amended or supplemental indenture or other amendment, the Trustee shall be entitled to receive and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officer's Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental Indenture or other amendment is authorized or permitted by this Indenture. ARTICLE 10. COLLATERAL AND SECURITY Section 10.01 Security Documents. The due and punctual payment of the principal and Accreted Value of and interest and premium (if any) on the Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal or Accreted Value of and interest on the Notes and performance of all other obligations of the Company to the Holders or the Trustee under this Indenture and the Notes, according to the terms hereunder or thereunder, are secured as provided in the Security Documents which the Company and the Guarantors have entered into simultaneously with the execution of this Indenture, subject to the terms of the Intercreditor Agreement. Each Holder of a Note, by its acceptance thereof, consents and agrees to the terms of this Indenture and the Security Documents (including the provisions providing for foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with its terms or the terms hereof and authorizes and directs the Collateral Agent to enter into the Security Documents and to perform its obligations and exercise its rights thereunder in accordance therewith. The Company shall deliver to the Trustee (if it is not itself then the Collateral Agent) copies of all documents delivered to the Collateral Agent pursuant to the Security Documents, and shall do or cause to be done all such acts and things as may be required by the next sentence of this Section 10.01, to assure and confirm to the Trustee and the Collateral Agent the security interest in the Collateral contemplated hereby, by the Security Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. The Company shall take, and shall cause its Restricted Subsidiaries to take, any and all actions reasonably required to cause the Security Documents to create and maintain, as security for the Obligations of the Company and the Guarantors hereunder, a valid and enforceable perfected third-priority Lien and security interest in and on 100% of the capital stock of, or other Equity Interests in, existing and future Domestic Subsidiaries owned by the Company and its Restricted Subsidiaries, substantially all the personal property assets of the Company and the Guarantors, all fee interests in real property assets and all leasehold interests, in favor of the Collateral Agent for the benefit of the Holders, third in priority (subject to Permitted Liens) to Liens securing Credit Agreement Obligations. Section 10.02 Recording and Opinions. (a) The Company shall furnish to the Collateral Agent and the Trustee on January 15 in each year beginning with January 15, 2005, an Opinion of Counsel, which may be rendered by internal counsel to the Company, dated as of such date, either: (1) (A) stating that, in the opinion of such counsel, action has been taken with respect to the recording, registering, filing, re-recording, re-registering and re-filing of all supplemental indentures, financing statements, continuation statements or other instruments of further assurance as is necessary to maintain and perfect the Lien of the Security Documents and reciting with respect to the security interests in the Collateral the details of such action or referring to prior Opinions of Counsel in which such details are given, and (B) stating that, in the opinion of such counsel, based on relevant laws as in effect on the date of such Opinion of Counsel, all financing statements and continuation statements have been executed and filed that are necessary as of such date and during the succeeding 12 months fully to preserve, perfect and protect, to the extent such protection and preservation are possible by filing, the rights of the Collateral Agent and the Trustee hereunder and under the Security Documents with respect to the security interests in the Collateral; or (2) stating that, in the opinion of such counsel, no such action is necessary to maintain and perfect such Lien and assignment. (b) The Company shall otherwise comply with the provisions of TIA Section 314(b). Section 10.03 Release of Collateral/Additional Liens. (a) Subject to subsections (b), (c) and (d) of this Section 10.03, Collateral may be released from the Lien and security interest created by the Security Documents at any time or from time to time in accordance with the provisions of the Security Documents or as provided hereby. Whether prior to or after the Discharge of Credit Agreement Obligations, upon the request of the Company pursuant to an Officer's Certificate certifying that all conditions precedent hereunder have been met and without the consent of any Holder, the Company and the Guarantors shall be entitled to a release (or in the case of clause (3) below, a subordination) of the security interests on assets included in the Collateral from the Liens securing the Notes and the Subsidiary Guarantees under any one or more of the following circumstances: (1) to enable the Company or any Guarantor to consummate any sale, lease, conveyance or other disposition of any assets or rights permitted or not prohibited under Section 4.10; (2) in respect of assets subject to a permitted purchase money lien; (3) if all of the stock of any Subsidiary of the Company that is pledged as part of the Collateral is released or if any Subsidiary that is a Guarantor is released from its Guarantee, such Subsidiary's assets will also be released; or (4) pursuant to an amendment, waiver or supplement in accordance with Article 9; provided that, in the case of a release requested under clauses (1), (2) or (3), above, or a subordination under clause (2) above, the Credit Agent concurrently releases (or in the case of a requested subordination under clause (2) above, subordinates) the Liens securing Credit Agreement Obligations with respect to the affected assets and, provided further, that if there are any subordinated Liens on such assets, such subordinated Liens are similarly released or subordinated. Upon receipt of such Officer's Certificate, the Collateral Agent shall execute, deliver or acknowledge any necessary or proper instruments of termination, satisfaction or release to evidence the release (or in the case of clause (2) above, the subordination) of any Collateral permitted to be released (or in the case of clause (2) above, subordinated) pursuant to this Indenture or the Security Documents. Notwithstanding anything to the contrary in this Section 10.03(a) or in Section 10.03(b), as long as the Company is in compliance with the provisions of Section 10.03(f), the Company or any Guarantor may, pursuant to and in accordance with this Indenture and the Security Documents, without requesting the release or consent of the Trustee or the Collateral Agent or any Holder and without delivering an Officer's Certificate: (A) sell or dispose of in the ordinary course of business, free from the Lien and security interest created by the Security Documents, any machinery, equipment, furniture, apparatus, tools, implements, materials, supplies or other similar property ("Subject Property") which, in the Company's reasonable opinion, may have become obsolete or unfit for use in the conduct of its business or the operation of the Collateral upon replacing the same with, or substituting for the same, new Subject Property constituting Collateral not necessarily of the same character but being of at least equal value and utility as the Subject Property so disposed of, as long as such new Subject Property becomes subject to the Lien and security interest created by the Security Documents; (B) abandon, sell, assign, transfer, license or otherwise dispose of in the ordinary course of business any personal property the use of which is no longer necessary or desirable in the proper conduct of the business or maintenance of the earnings of the Company and its Subsidiaries, taken as a whole, and is not material to the conduct of the business of the Company and its Subsidiaries, taken as a whole; (C) grant in the ordinary course of business rights-of-way and easements over or in respect of any of the Company's or any Guarantor's real property; provided that such grant shall not, in the reasonable opinion of the Board of Directors, impair the usefulness of such property in the conduct of the Company's and its Subsidiaries' business, taken as a whole, and shall not be materially prejudicial to the interests of the Holders; (D) sell, transfer or otherwise dispose of inventory in the ordinary course of business; (E) sell, collect, liquidate, factor or otherwise dispose of accounts receivable in the ordinary course of business; and (F) make cash payments (including for the scheduled repayment of Indebtedness) from cash that is at any time part of the Collateral in the ordinary course of business that are not otherwise prohibited by this Indenture and the Security Documents. (b) Except as may be otherwise provided in the Security Documents or in this Section 10.03, no Collateral may be released from the Lien and security interest created by the Security Documents pursuant to the provisions of the Security Documents unless the Officer's Certificate required by this Section 10.03 has been delivered to the Collateral Agent. (c) At any time when a Default or Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (whether by declaration or otherwise) and the Trustee has delivered a notice of acceleration to the Collateral Agent, no release of Collateral pursuant to the provisions of the Security Documents shall be effective as against the Holders, except as otherwise provided in the Security Documents. (d) The release of any Collateral from the terms of this Indenture and the Security Documents shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent the Collateral is released pursuant to the terms of the Security Documents and this Indenture. To the extent applicable, the Company and the Guarantors shall cause TIA Section 313(b), relating to reports, and TIA Section 314(d), relating to the release of property or securities from the Lien and security interest of the Security Documents and relating to the substitution therefor of any property or securities to be subjected to the Lien and security interest of the Security Documents, to be complied with. Any certificate or opinion required by TIA Section 314(d) may be made by an Officer of the Company or the Guarantors except in cases where TIA Section 314(d) requires that such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other expert selected or approved by the Trustee and the Collateral Agent in the exercise of reasonable care, and in accordance with the TIA; provided that the fair value of Collateral released from the Lien and security interest of the Security Documents pursuant to the last paragraph of Section 10.03(a) shall not be considered in determining whether the aggregate fair value of Collateral released from the Lien and security interest of the Security Documents in any calendar year exceeds the 10% threshold specified in TIA Section 314(d)(1). The Company's and each Guarantor's right to rely on the immediately preceding proviso at any time is conditioned upon the Company and the Guarantors having furnished to the Trustee all certificates described in Section 10.03(f) that were required to be furnished to the Trustee at or prior to such time. (e) The Company may from time to time file with the Commission a request for an exemption (an "Exemption") from the requirements of TIA Section 314(d) for purposes of the releases of Collateral described in the last paragraph of Section 10.03(a). The Company shall provide the Trustee with a copy of any such Exemption and promptly inform the Trustee of any rescission or termination of, or amendment to, such Exemption. (f) In the case of transactions permitted by the last paragraph of Section 10.03(a), the Company and the Guarantors shall deliver to the Trustee, within 15 days after the end of each of the six month periods ended on March [15] and September [15] of each year, a certificate signed on behalf of the Company by an Officer of the Company to the effect that all transactions effected pursuant to the last paragraph of Section 10.03(a) during the immediately preceding six month period were made by the Company and the Guarantors in the ordinary course of business and that all proceeds therefrom were used by the Company and the Guarantors in connection with their respective businesses or to make payments on the Notes or as otherwise permitted under this Indenture and the Security Documents. Section 10.04 Certificates and Opinions of Counsel. (a) To the extent applicable, the Company shall furnish to the Trustee and the Collateral Agent, prior to each proposed release of Collateral pursuant to the Security Documents: (1) all documents required by TIA Section 314(d); and (2) an Opinion of Counsel, to the effect that such accompanying documents constitute all documents required by TIA Section 314(d). (b) The Trustee may, to the extent permitted by Sections 7.01 and 7.02, accept as conclusive evidence of compliance with the foregoing provisions the appropriate statements contained in such documents and such Opinion of Counsel. Section 10.05 Certificates of the Trustee. In the event that the Company wishes to release Collateral in accordance with the Security Documents at a time when the Trustee is not itself also the Collateral Agent and has delivered the certificates and documents required by the Security Documents and Sections 10.03 and 10.04, the Trustee shall determine whether it has received all documentation required by TIA Section 314(d) in connection with such release and, based on such determination and the Opinion of Counsel delivered pursuant to Section 10.04(b), shall deliver a certificate to the Collateral Agent setting forth such determination. Section 10.06 Authorization of Actions to be Taken by the Trustee Under the Security Documents. (a) Subject to the provisions of Section 7.01 and 7.02 and the Intercreditor Agreement, the Trustee may, in its sole discretion and without the consent of the Holders, direct, on behalf of the Holders, the Collateral Agent to take all actions it deems necessary or appropriate in order to: (1) enforce any of the terms of the Security Documents; and (2) collect and receive any and all amounts payable in respect of the Obligations of the Company hereunder. (b) Subject to the terms of the Intercreditor Agreement, the Trustee shall have power to institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Collateral by any acts that may be unlawful or in violation of the Security Documents or this Indenture, and such suits and proceedings as the Trustee may deem expedient to preserve or protect its interests and the interests of the Holders in the Collateral (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders or of the Trustee). Section 10.07 Authorization of Receipt of Funds by the Trustee Under the Security Documents. The Trustee is authorized to receive any funds for the benefit of the Holders distributed under the Security Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture. Section 10.08 Termination of Security Interest. The Trustee shall, at the request of the Company, deliver a certificate to the Collateral Agent stating that all Obligations under the Notes, the Guarantees, this Indenture and the Security Documents have been paid in full, and instruct the Collateral Agent to take the actions set forth in the next sentence pursuant to this Indenture and the Security Documents upon (1) payment in full of the principal of, accrued and unpaid interest on the Notes and all other Obligations under this Indenture, the Guarantees and the Security Documents that are due and payable at or prior to the time such principal, accrued and unpaid interest are paid, (2) a satisfaction and discharge of this Indenture as described in Article 12 or (3) a legal defeasance or covenant defeasance as described in Article 8. Upon receipt of such instruction, the Collateral Agent shall execute, deliver or acknowledge any necessary or proper instruments of termination, satisfaction or release to evidence the release of all such Liens. ARTICLE 11. NOTE GUARANTEES Section 11.01 Guarantee. (a) Subject to this Article 11, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (1) the principal and Accreted Value of and premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and Accreted Value of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. (b) Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. (c) Subject to Section 11.02, the Guarantors hereby agree that their obligations hereunder are full and unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. (d) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. (e) Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. Each Guarantor shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Subsidiary Guarantee. Section 11.02 Limitation on Guarantor Liability. Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Subsidiary Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of such Guarantor shall, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 11, result in the obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent transfer or conveyance. Section 11.03 Execution and Delivery of Subsidiary Guarantees. (a) To evidence its Subsidiary Guarantee set forth in Section 11.01, each Guarantor hereby agrees that a notation of such Subsidiary Guarantee substantially in the form attached as Exhibit B hereto shall be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of such Guarantor by one of its Officers. (b) Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 11.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Subsidiary Guarantee. (c) If an Officer whose signature is on this Indenture or on the Subsidiary Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid nevertheless. (d) The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the Guarantors. (e) In the event that the Company creates or acquires any Domestic Subsidiary after the Issue Date, if required by Section 4.17, the Company shall cause such Domestic Subsidiary to comply with the provisions of Section 4.17 and this Article 11, to the extent applicable. Section 11.04 Guarantors May Consolidate, etc., on Certain Terms. (a) Except as otherwise provided in Section 11.05, no Guarantor may sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person) another Person, other than the Company or another Guarantor, except that a Restricted Subsidiary may merge with or into any Guarantor so long as such Guarantor is the surviving entity, unless: (1) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (2) if the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger is a Restricted Subsidiary immediately following such transaction, such Person assumes all the obligations of that Guarantor under its Subsidiary Guarantee pursuant to a supplemental indenture satisfactory to the Trustee; and (3) the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, comply with this Indenture; provided, however, that the foregoing shall not apply to any such consolidation or merger with or into, or conveyance, transfer or lease to, any Person if the resulting, survivor or transferee Person will not be a Subsidiary of the Company and the other terms of this Indenture, including Section 4.10, are complied with. (b) In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Subsidiary Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Subsidiary Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Subsidiary Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Subsidiary Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Subsidiary Guarantees had been issued at the date of the execution hereof. (c) Except as set forth in Article 4, and notwithstanding Section 11.04(a), nothing contained in this Indenture or in any of the Notes shall prevent any consolidation or merger of a Guarantor with or into the Company or another Guarantor, or shall prevent any sale or conveyance of the property of a Guarantor as an entirety or substantially as an entirety to the Company or another Guarantor. Section 11.05 Releases Following Sale of Assets. (a) In the event of any sale or other disposition of all or substantially all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of Capital Stock of any Guarantor such that it is no longer a Subsidiary of the Company, in each case to a Person that is not (either before or after giving effect to such transaction) a Restricted Subsidiary of the Company, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the capital stock of such Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) shall be released and relieved of any obligations under its Subsidiary Guarantee; provided that the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of this Indenture, including without limitation Section 4.10. Upon delivery by the Company to the Trustee of an Officer's Certificate and an Opinion of Counsel to the effect that such sale or other disposition, merger or consolidation was made by the Company or a Subsidiary of the Company in accordance with the provisions of this Indenture, including without limitation Section 4.10, the Trustee shall execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Subsidiary Guarantee. (b) Any Guarantor not released from its obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal or Accreted Value of and premium and interest on the Notes and for the other obligations of such Guarantor under this Indenture as provided in this Article 11. Section 11.06 Release Following Designation as an Unrestricted Subsidiary. In the event the Company designates any Guarantor as an Unrestricted Subsidiary in accordance with Section 4.18, the Obligations of such Guarantor under its Subsidiary Guarantee pursuant to this Article 11 shall be released. ARTICLE 12. SATISFACTION AND DISCHARGE Section 12.01 Satisfaction and Discharge. (a) This Indenture shall be discharged and shall cease to be of further effect as to all Notes issued hereunder, when: (1) either: (A) all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company) have been delivered to the Trustee for cancellation; or (B) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or shall become due and payable within one year and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as shall be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal or Accreted Value, premium (if any) and accrued interest to the date of maturity or redemption; (2) no Default or Event of Default has occurred and is continuing on the date of such deposit or will occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound; (3) the Company or any Guarantor has paid or caused to be paid all sums payable under this Indenture; (4) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be; and (5) the Company has delivered an Officer's Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied. (b) Notwithstanding the satisfaction and discharge of this Indenture; if money has been deposited with the Trustee pursuant to subclause (b) of clause (1) of Section 12.01(a), the provisions of Section 12.02 and Section 8.06 shall survive. In addition, nothing in this Section 12.01 shall be deemed to discharge those provisions of Section 7.07, that, by their terms, survive the satisfaction and discharge of this Indenture. Section 12.02 Application of Trust Money. (a) Subject to the provisions of Section 8.06, all money deposited with the Trustee pursuant to Section 12.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal or Accreted Value (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law. (b) If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 12.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's and any Guarantor's obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.01; provided that if the Company has made any payment of principal of, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent. ARTICLE 13. MISCELLANEOUS Section 13.01 Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA ss.318(c), the imposed duties shall control. Section 13.02 Notices. (a) Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the others' address: If to the Company and/or any Guarantor: Covanta Energy Corporation 40 Lane Road Fairfield, New Jersey 07007 Attention: Tim Simpson, Esq. With a copy to: [ ] If to the Trustee: U.S. Bank National Association 225 Asylum Street, 23rd Floor Hartford, Connecticut 06103 Attention: Corporate Trust Services Facsimile: (860) 241-6881 (b) The Company, any Guarantor or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications. (c) All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. (d) Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or communication shall also be so mailed as delivered to any Person described in TIA ss. 313(c), to the extent required by the TIA. Failure to mail or deliver a notice or communication to a Holder or any defect in it will not affect its sufficiency with respect to other Holders. (e) If a notice or communication is mailed or delivered in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it. (f) If the Company mails or delivers a notice or communication to Holders, it shall mail or deliver a copy to the Trustee and each Agent at the same time. Section 13.03 Communication by Holders of Notes with Other Holders of Notes. Holders may communicate pursuant to TIA ss. 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA ss. 312(c). Section 13.04 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: (1) an Officer's Certificate in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 13.05) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and (2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which must include the statements set forth in Section 13.05) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied. Section 13.05 Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA ss. 314(a)(4)) must comply with the provisions of TIA ss. 314(e) and must include: (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been satisfied; and (4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied; provided that an Opinion of Counsel can rely as to matters of fact on an Officer's Certificate or a certificate of a public official. Section 13.06 Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Trustee shall provide the Company reasonable notice of such rules. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions. Section 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future director, officer, employee, incorporator, stockholder, member or agent of the Company or any Guarantor, as such, will have any liability for any obligations of the Company or the Guarantors under the Notes, this Indenture, the Subsidiary Guarantees or the Security Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws. Section 13.08 Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Section 13.09 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. Section 13.10 Successors. All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 11.05. Section 13.11 Severability. In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 13.12 Counterpart Originals. The parties may sign any number of copies or counterparts of this Indenture. Each signed copy or counterpart shall be an original, but all of them together represent the same agreement. Section 13.13 Table of Contents, Headings, etc. The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof. S I G N A T U R E S Dated as of March [___], 2004 COVANTA ENERGY CORPORATION, a Delaware Corporation By: --------------------------------------- Name: Title: GUARANTORS LISTED ON SCHEDULE I By: --------------------------------------- Name: Title: As [________] of each of the entities referred to above U.S. BANK NATIONAL ASSOCIATION, as Trustee By: --------------------------------------- Name: Title: I-1 LA1:1025748.12 [New York #1257570 v1] 1 Schedule I SCHEDULE OF GUARANTORS The following schedule lists each Guarantor under this Indenture as of the Issue Date: Company Jurisdiction of Organization - -------------------------------------------------------------------------------- 1. AMOR 14 Corporation Delaware 2. Covanta Acquisition, Inc. Delaware 3. Covanta Bessemer, Inc. Delaware 4. Covanta Cunningham Environmental Support, Inc. New York 5. Covanta Energy Americas, Inc. Delaware 6. Covanta Energy Construction, Inc. Delaware 7. Covanta Energy Corporation Delaware 8. Covanta Energy Group, Inc. Delaware 9. Covanta Energy International, Inc. Delaware 10. Covanta Energy Resource Corp. Delaware 11. Covanta Energy Services, Inc. Delaware 12. Covanta Energy West, Inc. Delaware 13. Covanta Engineering Services, Inc. New Jersey 14. Covanta Geothermal Operations Holdings, Inc. Delaware 15. Covanta Geothermal Operations, Inc. Delaware 16. Covanta Haverhill Properties, Inc. Massachusetts 17. Covanta Heber Field Energy, Inc. Delaware 18. Covanta Hennepin Energy Resource Co., Limited Partnership Delaware 19. Covanta Hillsborough, Inc. Florida 20. Covanta Huntington Resource Recovery One Corp. Delaware 21. Covanta Huntington Resource Recovery Seven Corp. Delaware 22. Covanta Huntsville, Inc. Alabama 23. Covanta Hydro Energy, Inc. Delaware 24. Covanta Hydro Operations West, Inc. Delaware 25. Covanta Hydro Operations, Inc. Tennessee 26. Covanta Imperial Power Services, Inc. California 27. Covanta Kent, Inc. Michigan 28. Covanta Lancaster, Inc. Pennsylvania 29. Covanta Lee, Inc. Florida 30. Covanta Long Island, Inc. Delaware 31. Covanta Marion Land Corp. Oregon 32. Covanta Mid-Conn., Inc. Connecticut 33. Covanta Montgomery, Inc. Maryland 34. Covanta New Martinsville Hydroelectric Corporation Delaware 35. Covanta New Martinsville Hydro-Operations Corporation West Virginia 36. Covanta Oahu Waste Energy Recovery, Inc. California 37. Covanta Onondaga Five Corporation Delaware 38. Covanta Onondaga Four Corporation Delaware 39. Covanta Onondaga Operations, Inc. Delaware 40. Covanta Onondaga Three Corporation Delaware 41. Covanta Onondaga Two Corporation Delaware 42. Covanta Onondaga, Inc. New York 43. Covanta Operations of Union LLC New Jersey 44. Covanta OPW Associates, Inc. Connecticut 45. Covanta OPWH, Inc. Delaware 46. Covanta Pasco, Inc. Florida 47. Covanta Plant Services of New Jersey, Inc. New Jersey 48. Covanta Power Equity Corporation Delaware 49. Covanta Power Pacific, Inc. California 50. Covanta Power Plant Operations California 51. Covanta Projects of Hawaii, Inc. Hawaii 52. Covanta Projects, Inc. Delaware 53. Covanta RRS Holdings Inc. Delaware 54. Covanta Secure Services, Inc. Delaware 55. Covanta SIGC Energy, Inc. Delaware 56. Covanta SIGC Energy II, Inc. California 57. Covanta SIGC Geothermal Operations, Inc. California 58. Covanta Systems, LLC Delaware 59. Covanta Wallingford Associates, Inc. Connecticut 60. Covanta Waste to Energy , LLC Delaware 61. Covanta Water Holdings, Inc. Delaware 62. Covanta Water Systems Inc. Delaware 63. Covanta Water Treatment Services Inc. Delaware 64. DSS Environmental, Inc. New York 65. ERC Energy II, Inc. Delaware 66. ERC Energy, Inc. Delaware 67. Heber Field Energy II, Inc. Delaware 68. Heber Loan Partners California 69. LMI, Inc. Massachusetts 70. Mammoth Geothermal Company California 71. Mammoth Power Company California 72. Mt. Lassen Power California 73. Pacific Geothermal Company California 74. Pacific Oroville Power, Inc. California 75. Pacific Wood Fuels Company California 76. Pacific Wood Services Company California 77. Three Mountain Operations, Inc. Delaware 78. Three Mountain Power, LLC Delaware 79. Burney Mountain Power California 80. Covanta Alexandria/Arlington, Inc. Virginia 81. Covanta Bristol, Inc. Connecticut 82. Covanta Fairfax, Inc. Virginia 83. Covanta Haverhill, Inc. Massachusetts 84. Covanta Honolulu Resource Recovery Venture Hawaii 85. C Covanta Indianapolis, Inc Indiana 86. Covanta Marion, Inc. Oregon 87. C Covanta Omega Lease, Inc. Delaware 88. C Covanta Stanislaus, Inc. California 89. Haverhill Power, LLC Massachusetts 90. Michigan Waste Energy Inc. Delaware EXHIBIT A [Face of Note] CUSIP/CINS: 22281N AA 1 ISIN: US22281NAA19 8.25% Senior Secured Notes Due 2011 No. _________ $230,000,000 at Stated Maturity COVANTA ENERGY CORPORATION promises to pay to__________________________________ or registered assigns, the principal sum of TWO HUNDRED THIRTY MILLION DOLLARS on March 15, 2011. Interest Payment Dates: March 15 and September 15 Record Dates: March 1 and September 1 Dated: March [___], 2004 COVANTA ENERGY CORPORATION By:________________________ Name: Title: This is one of the Notes referred to in the within-mentioned Indenture: U.S. Bank National Association, as Trustee By: ---------------------------------------- Authorized Signatory [Back of Note] 8.25% Senior Secured Notes Due 2011 [Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture] Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. (1) INTEREST. Covanta Energy Corporation, a Delaware corporation (the "Company"), promises to pay interest on the principal amount at Stated Maturity of this Note at a rate equal to 8.25% per annum plus any additional amounts payable pursuant to Section 4.21 of the Indenture. The Company shall pay interest semiannually in arrears on March 15 and September 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an "Interest Payment Date"). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be September 15, 2004. Interest shall be computed on the basis of a 360-day year of twelve 30-day months. (2) METHOD OF PAYMENT. The Company shall pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the March 1 or September 1 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes shall be payable as to principal or Accreted Value, premium, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders; provided that payment by wire transfer of immediately available funds shall be required with respect to principal and Accreted Value of and premium, if any, and interest on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debt. (3) PAYING AGENT AND REGISTRAR. Initially, U.S. Bank National Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity. (4) INDENTURE. The Company issued the Notes under an Indenture dated as of March [___], 2004 (the "Indenture") among the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and these made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are secured obligations of the Company pursuant to the Security Documents and subject to the terms of the Intercreditor Agreement. (5) OPTIONAL REDEMPTION. (a) At any time after the Issue Date and on or before March 15, 2006, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days' notice, at the Accreted Value on the redemption date, plus accrued and unpaid interest to the redemption date. (b) At any time after March 15, 2006, the Company may on any one or more occasions redeem all or a part of the Notes, upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of Accreted Value) set forth below, plus accrued and unpaid interest to the redemption date, if redeemed during the twelve-month period beginning on March 15 of the years indicated below: Year Percentage ---- ---------- 2006................................. 104.625% 2007................................. 103.469% 2008................................. 102.313% 2009................................. 101.156% 2010 and thereafter.................. 100.000% (c) Any redemption pursuant to Section 3.07 of the Indenture shall be made in accordance with the provisions of Sections 3.01 through 3.06 of the Indenture. (6) MANDATORY REDEMPTION. The Company is not required to make mandatory redemption or sinking fund payments with respect to the Notes. (7) REPURCHASE AT OPTION OF HOLDER. (a) Subject to the Company's right to redeem the Notes pursuant to Section 3.07 of the Indenture, upon the occurrence of a Change of Control, the Company shall be required to make an offer (a "Change of Control Offer") to each Holder to repurchase all or any part (in a minimum aggregate principal amount at Stated Maturity of $1,000 or an integral multiple of $1,000) of such Holder's Notes at a purchase price in cash equal to 101% of the Accreted Value of the Notes repurchased plus accrued and unpaid interest on the Notes repurchased to the date of repurchase (the "Change of Control Payment"). Within 10 days following any Change of Control, if the Company has not sent a redemption notice pursuant to Section 3.03 of the Indenture for all of the Notes, the Company shall mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture. (b) If the Company or a Subsidiary consummates any Asset Sale, and the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall, subject to the Intercreditor Agreement, commence an offer to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an "Asset Sale Offer") pursuant to Section 4.10 of the Indenture to purchase or redeem the maximum principal amount at Stated Maturity of Notes and such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer shall be equal to 100% of the Accreted Value thereof plus accrued and unpaid interest on the Notes to be purchased to the date fixed for the closing of such Asset Sale Offer in accordance with the procedures set forth in the Indenture, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate Accreted Value of Notes and principal amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and other pari passu Indebtedness to be purchased or redeemed on a pro rata basis. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to each of the Holders containing all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date. (8) NOTICE OF REDEMPTION. Subject to the provisions of Sections 3.09 and 3.10 of the Indenture, notice of redemption shall be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Notes or a satisfaction and discharge of the Indenture pursuant to Articles 8 or 12 of the Indenture. Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption. (9) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company shall not be required to register the transfer of or to exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. Also, the Company shall not be required to issue, to register the transfer of or to exchange any Notes (i) during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 of the Indenture and ending at the close of business on the day of selection, or (ii) during a period beginning at the opening of business 15 days before any Interest Payment Date and ending at the closing of business on such Interest Payment Date. (10) PERSONS DEEMED OWNERS. The Holder of a Note may be treated as its owner for all purposes. (11) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture, the Subsidiary Guarantees, the Notes or the Security Documents may be amended or supplemented with the consent of the Holders of at least a majority in principal amount at Stated Maturity of the then outstanding Notes voting as a single class, and any existing default or compliance with any provision of the Indenture, the Subsidiary Guarantees, the Notes or the Security Documents may be waived with the consent of the Holders of a majority in principal amount at Stated maturity of the then outstanding Notes, voting as a single class. Without the consent of any Holder of a Note, the Indenture, the Subsidiary Guarantees, the Notes or the Security Documents may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for the assumption of the Company's obligations to Holders of the Notes in case of a merger or consolidation or sale of all or substantially all of the Company's assets, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that would not adversely affect the legal rights under the Indenture of any such Holder, to comply with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act, to allow any Guarantor to execute a supplemental indenture and/or a Subsidiary Guarantee with respect to the Notes, or if necessary, in connection with any addition or release of Collateral permitted under the terms of the Indenture or the Security Documents. (12) DEFAULTS AND REMEDIES. Events of Default include: (i) the Company defaults for 30 consecutive days in the payment when due of interest on the Notes; (ii) the Company defaults in payment when due of the principal or Accreted Value of, or premium, if any, on the Notes; (iii) failure by the Company or any of its Restricted Subsidiaries to comply with its obligations to make any Change of Control Payment pursuant to Section 4.15 or to comply with the provisions of Section 5.01 of the Indenture; (iv) failure by the Company or any of its Restricted Subsidiaries for 30 days after written notice from the Trustee or Holders of at least 25% in aggregate principal amount of the outstanding Notes to comply with the provisions of any of Section 4.07, 4.09 or 4.10 of the Indenture; (v) failure by the Company or any of its Restricted Subsidiaries for 60 days after written notice from the Trustee or Holders of at least 25% in aggregate principal amount of the outstanding Notes to comply with any of the other agreements in the Indenture or the Security Documents; (vi) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness of the Company or any of its Restricted Subsidiaries whether such Indebtedness now exists, or is created after the Issue Date, if that default (A) is caused by a failure to pay principal of or liquidation preference of such Indebtedness at the final stated maturity thereof (giving effect to any applicable grace periods and any extensions thereof), (B) results in the acceleration of such Indebtedness prior to its express maturity, or (C) results in a requirement that the Company or any of its Restricted Subsidiaries collateralize any letter of credit thereunder and the Company or such Restricted Subsidiary fails to provide the required collateral on the terms and within the times set forth therein (giving effect to any applicable grace periods and any extensions thereof), and, in each case, if the principal amount of any such Indebtedness aggregates $20.0 million or more; (vii) any final judgment or judgments for the payment of money in an aggregate amount in excess of $10.0 million (or its foreign currency equivalent at the time) in excess of amounts which the Company's insurance carriers have agreed to pay under applicable policies shall have been rendered against the Company or any Restricted Subsidiary of the Company that is a Significant Subsidiary and shall not have been waived, satisfied, bonded or discharged for any period of 60 consecutive days during which a stay of enforcement is not in effect; (viii) certain events of bankruptcy or insolvency described in the Indenture with respect to the Company or any of its Significant Subsidiaries; and (ix) (a) any Subsidiary Guarantee or any Security Document or any security interest granted thereby is held in any judicial proceeding to be unenforceable or invalid, or ceases for any reason to be in full force and effect and such default continues for ten days after written notice, or (b) the Company or any Guarantor, or any Person acting on behalf of the Company or any Guarantor, denies or disaffirms its obligations under any Subsidiary Guarantee or Security Document. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount at Stated maturity of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, with respect to the Company or a Significant Subsidiary, all outstanding Notes shall become due and payable without further action or notice. The amount payable with respect to principal of the Notes upon any acceleration shall be the Accreted Value of the Notes as of the date of such acceleration. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount at Stated Maturity of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Holders of a majority in aggregate principal amount at Stated Maturity of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of principal or Accreted Value of or premium or interest on the Notes (except a rescission of acceleration of the Notes by the Holders of a majority in aggregate principal amount at Stated Maturity of the then outstanding Notes). The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required, within five Business Days after the date on which any Officer of the Company becomes aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default. (13) TRUSTEE DEALINGS WITH COMPANY. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the Commission for permission to continue as trustee or resign. (14) NO RECOURSE AGAINST OTHERS. A past, present or future director, officer, employee, incorporator or stockholder of the Company or any Guarantor, as such, shall not have any liability for any obligations of the Company or Guarantors under the Notes, the Subsidiary Guarantees, the Indenture or the Security Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. (15) AUTHENTICATION. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. (16) ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). (17) CUSIP NUMBERS AND ISNs. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers and ISNs to be printed on the Notes and the Trustee may use CUSIP numbers and ISNs in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to: Covanta Energy Corporation 40 Lane Road Fairfield, New Jersey 07007 Attention: General Counsel ASSIGNMENT FORM To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to:_____________________________ (Insert assignee's legal name) ________________________________________________________________________________ ________________________________________________________________________________ (Insert assignee's soc. sec. or tax I.D. no.) ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Print or type assignee's name, address and zip code) and irrevocably appoint _________________________________________________________ to transfer this Note on the books of the Company. The agent may substitute another to act for him. Date: ________________________ Your Signature:_________________________________________ (Sign exactly as your name appears on the face of this Note) Signature Guarantee*: ____________________________________________ * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have this Note purchased by the Company pursuant to Section 3.09 or 4.15 of the Indenture, check the appropriate box below: |_| Section 3.09 |_| Section 4.15 If you want to elect to have only part of the principal amount at Stated Maturity of the Note purchased by the Company pursuant to Section 3.09 or 4.15 of the Indenture, state the principal amount at Stated Maturity you elect to have purchased: $_______________________ Date: ____________________ Your Signature:_________________________________________ (Sign exactly as your name appears on the face of this Note) Tax Identification No.:__________________________________ Signature Guarantee*: ___________________________ * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made: Principal Amount of this Global Note Signature of Amount of decrease Amount of increase in following such authorized officer in Principal Amount Principal Amount of decrease (or of Trustee or Date of Exchange of this Global Note this Global Note increase) Custodian - ------------------- ------------------- ------------------- ------------------- -------------------
EXHIBIT B FORM OF NOTATION OF GUARANTEE For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of March [___], 2004 (the "Indenture") among Covanta Energy Corporation, (the "Company", the Guarantors listed on Schedule I thereto and U.S. Bank National Association, as trustee (the "Trustee"), (a) the due and punctual payment of the principal or Accreted Value of, premium, if any, and interest on the Notes (as defined in the Indenture), whether at maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Subsidiary Guarantee and the Indenture are expressly set forth in Article 11 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Subsidiary Guarantee. Each Holder of a Note, by accepting the same, agrees to and shall be bound by such provisions. [NAMES OF GUARANTORS] By: ----------------------- Name: Title: EXHIBIT C FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of ___________, 20__, among ___________________________ (the "Guaranteeing Subsidiary"), a subsidiary of Covanta Energy Corporation (or its permitted successor), a Delaware corporation (the "Company"), the Company, the other Guarantors (as defined in the Indenture referred to herein) and U.S. Bank National Association, as trustee under the indenture referred to below (the "Trustee"). WITNESSETH WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the "Indenture"), dated as of March [___], 2004 providing for the issuance of an aggregate principal amount at Stated Maturity of $230.0 million of 8.25% Senior Secured Notes Due 2011 (the "Notes"); WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company's Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the "Subsidiary Guarantee"); and WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows: 1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. 2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees as follows: (a) Along with all Guarantors named in the Indenture, to jointly and severally Guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, the Notes or the obligations of the Company hereunder or thereunder, that: (i) the principal or Accreted Value of, and premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. (b) The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. (c) The following is hereby waived: diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever. (d) Except as otherwise provided herein or in the Indenture, this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and the Indenture, and the Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Indenture. (e) If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. (f) The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. (g) As between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 of the Indenture for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. (h) The Guarantors shall have the right to seek contribution from any nonpaying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee. (i) Pursuant to Section 11.02 of the Indenture, after giving effect to any maximum amount and all other contingent and fixed liabilities that are relevant under any applicable Bankruptcy or fraudulent conveyance laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under Article 11 of the Indenture, this new Subsidiary Guarantee shall be limited to the maximum amount permissible such that the obligations of such Guarantor under this Subsidiary Guarantee will not constitute a fraudulent transfer or conveyance. 3. EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the Subsidiary Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Subsidiary Guarantee. 4. RELEASES. (a) In the event of any sale or other disposition of all or substantially all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of Capital Stock of any Guarantor such that it is no longer a Subsidiary of the Company, in each case to a Person that is not (either before or after giving effect to such transaction) a Restricted Subsidiary of the Company, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the capital stock of such Guarantor) or the Person acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) shall be released and relieved of any obligations under its Subsidiary Guarantee; provided that the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of the Indenture, including without limitation Section 4.10 of the Indenture. Upon delivery by the Company to the Trustee of an Officer's Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company or a Subsidiary of the Company in accordance with the provisions of the Indenture, including without limitation Section 4.10 of the Indenture, the Trustee shall execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under its Subsidiary Guarantee. (b) Any Guarantor not released from its obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal or Accreted Value of and interest on the Notes and for the other obligations of such Guarantor under the Indenture as provided in Article 11 of the Indenture. 5. NO PERSONAL LIABILITY. No past, present or future director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guarantor under the Notes, any Subsidiary Guarantees, the Indenture, this Supplemental Indenture or the Security Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws. 6. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 7. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. 8. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof. 9. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company. IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written. Dated: , 20 ------------------ -- [GUARANTEEING SUBSIDIARY] By: ---------------------------------- Name: Title: COVANTA ENERGY CORPORATION By: ---------------------------------- Name: Title: [GUARANTORS] By: ---------------------------------- Name: Title: U.S. BANK NATIONAL ASSOCIATION, as Trustee By: ----------------------------------- Authorized Signatory EX-99.T3C2 170 exhibit_t3c-2.txt COVANTA ENERGY CORPORATION AND U.S. BANK TRUST NATIONAL ASSOCIATION as TRUSTEE 7.5% SUBORDINATED UNSECURED NOTES DUE 2012 INDENTURE Dated as of March [ ], 2004 THE 7.5% SUBORDINATED UNSECURED NOTES DUE 2012 (THE "NOTES") WILL BE INITIALLY ISSUED IN GLOBAL FORM AND HELD BY DTC. PLAN PARTICIPANTS ENTITLED TO RECEIVE NOTES WILL BE REQUIRED TO HOLD THEIR INTERESTS DIRECTLY OR INDIRECTLY THROUGH DTC PARTICIPANTS, AND WILL NOT BE ENTITLED TO RECEIVE PHYSICAL NOTES EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN THE INDENTURE. CROSS-REFERENCE TABLE* Trust Indenture Act Section Indenture Section ----------- ----------------- 310(a).................................................. 7.10 (b)................................................. 7.10 (b)(1).............................................. 7.10 311(a).................................................. 7.11 (b)................................................. 7.11 312(b).................................................. 11.3 (c)................................................. 11.3 313 7.6 314(a)(4)............................................... 3.4 316(c).................................................. 9.4 * This Cross Reference Table is not part of the Indenture. TABLE OF CONTENTS Page ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 1.1 Definitions.............................................................1 1.2 Incorporation by Reference of Trust Indenture Act......................27 1.3 Rules of Construction..................................................27 ARTICLE II THE NOTES 2.1 Form and Dating........................................................27 2.2 Execution and Authentication...........................................28 2.3 Registrar and Paying Agent.............................................28 2.4 Paying Agent to Hold Money in Trust....................................29 2.5 Holder Lists...........................................................29 2.6 Global Note Provisions.................................................29 2.7 Transfer and Exchange..................................................30 2.8 Mutilated, Destroyed, Lost or Stolen Notes.............................32 2.9 Temporary Notes........................................................32 2.10 Cancellation...........................................................32 2.11 Defaulted Interest.....................................................33 ARTICLE III COVENANTS 3.1 Payment of Notes.......................................................34 3.2 Maintenance of Office or Agency........................................34 3.3 Corporate Existence....................................................34 3.4 Compliance Certificate.................................................35 3.5 Further Instruments and Acts...........................................35 3.6 Restricted Payments ...................................................35 3.7 Asset Sales............................................................39 3.8 Transactions with Affiliates...........................................42 3.9 Offer to Repurchase Upon Change of Control.............................43 3.10 Designation of Restricted and Unrestricted Subsidiaries................45 ARTICLE IV OPTIONAL REDEMPTION OF NOTES 4.1 Optional Redemption....................................................46 4.2 Election to Redeem.....................................................46 4.3 Notice of Redemption...................................................46 4.4 Selection of Notes to Be Redeemed in Part..............................47 4.5 Deposit of Redemption Price............................................47 4.6 Notes Payable on Redemption Date.......................................47 4.7 Unredeemed Portions of Partially Redeemed Note.........................48 4.8 Offer to Purchase by Application of Excess Proceeds....................48 ARTICLE V SUCCESSOR 5.1 Merger, Consolidation, or Sale of Assets...............................50 5.2 Successor Corporation Substituted......................................51 ARTICLE VI DEFAULTS AND REMEDIES 6.1 Events of Default......................................................52 6.2 Acceleration...........................................................52 6.3 Other Remedies.........................................................53 6.4 Waiver of Past Defaults................................................53 6.5 Control by Majority....................................................53 6.6 Limitation on Suits....................................................53 6.7 Rights of Holders to Receive Payment...................................54 6.8 Collection Suit by Trustee.............................................54 6.9 Trustee May File Proofs of Claim, etc..................................54 6.10 Priorities.............................................................55 6.11 Undertaking for Costs..................................................55 ARTICLE VII TRUSTEE 7.1 Duties of Trustee......................................................55 7.2 Rights of Trustee......................................................56 7.3 Individual Rights of Trustee...........................................57 7.4 Trustee's Disclaimer...................................................58 7.5 Notice of Defaults.....................................................58 7.6 Reports by Trustee to Holders..........................................58 7.7 Compensation and Indemnity.............................................58 7.8 Replacement of Trustee.................................................59 7.9 Successor Trustee by Merger............................................60 7.10 Eligibility; Disqualification..........................................60 7.11 Preferential Collection of Claims Against Company......................60 ARTICLE VIII DISCHARGE OF INDENTURE 8.1 Satisfaction and Discharge.............................................60 8.2 Survival of Obligations................................................61 ARTICLE IX AMENDMENTS 9.1 Without Consent of Holders.............................................61 9.2 With Consent of Holders................................................62 9.3 Compliance with Trust Indenture Act....................................63 9.4 Revocation and Effect of Consents and Waivers..........................63 9.5 Notation on or Exchange of Notes.......................................63 9.6 Trustee to Sign Amendments and Supplements.............................63 ARTICLE X SUBORDINATION OF THE NOTES 10.1 Agreement to Subordinate...............................................64 10.2 Liquidation, Dissolution, Bankruptcy...................................64 10.3 Default on Senior Indebtedness of the Company..........................64 10.4 Acceleration of Payment of Notes.......................................65 10.5 When Distribution Must Be Paid Over....................................65 10.6 Subrogation............................................................65 10.7 Relative Rights........................................................65 10.8 Subordination May Not Be Impaired by Company...........................66 10.9 Rights of Trustee and Paying Agent.....................................66 10.10 Distribution or Notice to Representative...............................66 10.11 Trust Moneys Not Subordinated..........................................66 10.12 Trustee Entitled to Rely...............................................66 10.13 Trustee to Effectuate Subordination....................................67 10.14 Trustee Not Fiduciary for Holders of Senior Indebtedness...............67 10.15 Reliance by Holders of Senior Indebtedness on Subordination Provisions.............................................................67 10.16 Changes in Senior Indebtedness.........................................68 ARTICLE XI MISCELLANEOUS 11.1 Trust Indenture Act Controls...........................................68 11.2 Notices................................................................68 11.3 Communication by Holders with Other Holders............................69 11.4 Certificate and Opinion as to Conditions Precedent.....................69 11.5 Statements Required in Certificate or Opinion..........................69 11.6 Rules by Trustee, Paying Agent and Registrar...........................70 11.7 Legal Holidays.........................................................70 11.8 Governing Law, etc.....................................................70 11.9 No Recourse Against Others.............................................71 11.10 Successors.............................................................71 11.11 Duplicate and Counterpart Originals....................................71 11.12 Severability...........................................................71 11.13 Table of Contents; Headings............................................71 INDENTURE, dated as of [___], 2004, between Covanta Energy Corporation, a Delaware corporation (the "Company") and U.S. Bank (the "Trustee"), as Trustee. Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Company's 7.5% Subordinated Unsecured Notes due 2012 issued hereunder. ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 1.1 Definitions. "Agent Members" has the meaning assigned to it in Section 2.6(b). "Adjusted EBITDA" means, for any period, for the Company and its Consolidated Subsidiaries (i) without duplication, the aggregate amount derived by combining the amounts for such period of (a) "Operating income (loss)", plus (b) "Net Depreciation and Amortization Expense", plus (c) "Amortization of premium and discount, net", plus (d) "Unbilled receivables", to the extent associated with accretion accounting for Limited Recourse Debt relating to Projects of the Company and its Subsidiaries, minus (e) "Equity in income from unconsolidated investments", minus (ii) without duplication, the aggregate amount derived by combining the amounts (each expressed as a positive number) for such period of (a) "Payment of debt", to the extent consisting of principal payments on Limited Recourse Debt relating to Projects of the Company and its Subsidiaries, plus (b) "Minority interests", plus (c) the change in accreted value of the High Yield Notes, as each such line item referred to in clauses (i)(a), (i)(e) and (ii)(b) is reflected in the Company's consolidated statement of income prepared in conformity with GAAP and as each such line item referred to in clauses (i)(c), (i)(d) and (ii)(a) is reflected in the Company's consolidated statement of cash flows prepared in conformity with GAAP, in each case reported in a manner consistent with the Company's reporting of such amount in its last quarterly or annual report (as the case may be) on Form 10-Q or Form 10-K, respectively, filed with the Commission prior to the Issue Date, whether such line items are so titled or otherwise titled; provided, however, that with respect to any such period ending during 2008, each of the line items referred to above shall be calculated as if the terms of the service agreement of the Company and its Subsidiaries relating to the Alexandria Project in effect for fiscal year 2007 continued in effect during 2008, without giving effect to any negative impact on Adjusted EBITDA from the terms of any extension in 2008 of such service agreement. "Affiliate" means, with respect to any Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; provided, that beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be control. For purposes of this definition, the terms "controlling," controlled by" and "under common control with" have correlative meanings. "Approved DHC Investor" means any Person that acquires shares of common stock of DHC pursuant to a transaction determined by at least a majority of the members of the board of directors of DHC (who are not representatives, nominees or Affiliates of such Person) to be in the best interests of DHC and its stockholders. "Asset Sale" means: (1) the sale, lease, conveyance or other disposition of any assets, property or rights (other than the sale of Equity Interests of the Company by the Company); provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole will be governed by Section 3.9 or Section 5.1 and not by Section 3.7; and (2) the issuance of Equity Interests by any Restricted Subsidiary of the Company or the sale of Equity Interests in any Restricted Subsidiary of the Company. Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale: (1) any single transaction or series of related transactions that involves assets, property or rights or the issuance of Equity Interests having a fair market value, or yielding Net Proceeds, of less than $10.0 million; (2) any transfer of assets, property or rights by the Company to a Restricted Subsidiary of the Company or by a Restricted Subsidiary of the Company to the Company or another Restricted Subsidiary of the Company; (3) an issuance of Equity Interests by a Restricted Subsidiary of the Company to the Company or a Restricted Subsidiary of the Company; (4) the sale, lease, sublease or assignment of equipment, inventory, accounts receivable or other assets, property or rights in the ordinary course of business; (5) the disposition of equipment no longer used or useful in the business of the Company or any of its Restricted Subsidiaries; (6) a Sale/Leaseback Transaction with respect to any assets within 90 days of the acquisition of such assets which is not prohibited by the High Yield Notes Indenture; (7) the sale or other disposition of Cash Equivalents; (8) the grant of any license of patents or trademarks or registrations therefor and other similar intellectual property in the ordinary course of business; (9) the granting of any lien (or the foreclosure thereon) which is not prohibited by the High Yield Notes Indenture; (10) the surrender or waiver of contract rights or the settlement, release or surrender of a contract, tort or other litigation claim in the ordinary course of business; (11) any sale of Indebtedness or other securities of an Unrestricted Subsidiary of the Company; (12) a Restricted Payment permitted to be made under Section 3.6 or a Permitted Investment; or (13) any issuance of employee stock options or stock awards pursuant to benefit plans in existence on the Issue Date. "Attributable Debt" in respect of a Sale/Leaseback Transaction means, as at the time of determination, the present value (discounted at the interest rate implicit in such transaction, determined in accordance with GAAP) of the total obligations of the lessee for net rental payments during the remaining term of the lease included in such Sale/Leaseback Transaction (including any period for which such lease has been extended or may be, at the option of the lessor, extended). "Authenticating Agent" has the meaning assigned to it in Section 2.2(d). "Bank Indebtedness" means any and all amounts payable under or in respect of the Credit Agreements and any Permitted Refinancing Indebtedness with respect thereto, as amended from time to time, including principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or any Guarantor whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, guarantees and all other amounts payable thereunder or in respect thereof. "Bankruptcy Court" means the United States Bankruptcy Court for the Southern District of New York and any other court properly exercising jurisdiction over any relevant case under Chapter 11 of the Bankruptcy Law. "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal, state or non-U.S. law for the relief of debtors. "Bankruptcy Event of Default" means: (i) the Company or any Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case; (B) consents to the entry of an order for relief against it in an involuntary case; (C) consents to the appointment of or taking possession by a custodian, receiver, liquidator, trustee, assignee or sequestrator of it or for all or substantially all of its property; or (D) makes a general assignment for the benefit of its creditors; or (ii) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Company or any Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken as a whole, would constitute a Significant Subsidiary in an involuntary case; or (B) appoints a custodian, receiver, liquidator, trustee, assignee or sequestrator of the Company or any Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) that is a Significant Subsidiary or for all or substantially all of the property of the Company or any Restricted Subsidiary of the Company that is a Significant Subsidiary or, in either case, any group of Restricted Subsidiaries of the Company that, taken as a whole, would constitute a Significant Subsidiary; or (C) orders the liquidation of the Company or any Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Company that, taken as a whole, would constitute a Significant Subsidiary; and the order or decree remains unstayed and in effect for 60 consecutive days. "Bankrupt Subsidiary" means any of Covanta Warren Energy Resource Co. LP, a Delaware limited partnership, Covanta Lake, Inc., a Florida corporation, [Covanta Babylon, Inc., a New York corporation], Covanta Tampa Construction, Inc., a Delaware corporation or Covanta Tampa Bay, Inc., a Florida corporation, in each case so long as such Person remains subject to the Chapter 11 Cases before the Bankruptcy Court. "Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular "person" (as that term is used in Section 13(d)(3) of the Exchange Act), such "person" will be deemed to have beneficial ownership of all securities that such "person" has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms "Beneficially Own" and "Beneficially Owned" have a corresponding meaning. "Board of Directors" means, the Board of Directors of the Company. "Board Resolution" means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means any day other than a Legal Holiday. "Capital Lease Obligation" means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP. "Capital Stock" means: (i) in the case of a corporation, corporate stock; (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. "Cash" means money, currency or a credit balance in a Deposit Account. "Cash Equivalents" means: (i) United States dollars; (ii) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government having maturities of not more than one year from the date of acquisition; (iii) time deposits, demand deposits, certificates of deposit and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any bank lender party to the First Lien Letter of Credit Facility or an Affiliate thereof or with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of "B" or better; (iv) securities issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either Moody's Investor Service, Inc. ("Moody's") or Standard & Poor's Corporation ("S&P") or any successor thereto; (v) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (ii) and (iii) above entered into with any financial institution meeting the qualifications specified in clause (iii) above; (vi) commercial paper having one of the two highest ratings obtainable from Moody's or S&P and in each case maturing within one year after the date of acquisition; and (vii) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (ii) through (vi) of this definition. "Certificated Note" means any Note issued in fully-registered certificated form (other than a Global Note), which shall be substantially in the form of Exhibit A. "Change of Control" means the occurrence of any of the following: (1) any "person" (as such term is used in Section 13(d)(3) of the Exchange Act), other than one or more Permitted Holders, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company, whether as a result of the issuance of securities of the Company, any merger, consolidation, liquidation or dissolution of the Company, any direct or indirect transfer of securities or otherwise; provided that the creation of a holding company to own all of the Capital Stock of the Company will not be deemed to constitute a Change of Control under this clause (1) if, immediately after consummation of such transaction, the holders of the Capital Stock of such holding company are the same holders of the Capital Stock of the Company immediately before such transaction and the percentage holding of such holders is unaffected by the creation of such holding company; (2) the first day on which a majority of the members of the Board of Directors are not Continuing Directors; (3) the adoption of a plan relating to the liquidation or dissolution of the Company, other than to effect a Change of Domicile; or (4) the sale, lease or transfer, other than by way of merger or consolidation, in one or a series of related transactions, of all or substantially all the assets of the Company and its Restricted Subsidiaries taken as a whole to any "person" or "group" as that term is used in Section 13(d)(3) of the Exchange Act (other than to the Company, any Guarantor or one or more Permitted Holders or other than to effect a Change of Domicile). "Change of Domicile" means a transaction or series of related transactions, including without limitation (1) a merger, amalgamation, combination or consolidation of the Company with or into another Person, (2) the acquisition of all the Capital Stock of the Company or (3) the sale, transfer, conveyance or other disposition of all or substantially all the assets of the Company and its Subsidiaries taken as a whole to another Person, the sole purpose of which is to reincorporate the Company in another jurisdiction or organize a successor entity to the Company in another jurisdiction. "Chapter 11 Cases" means those bankruptcy cases jointly administered under the caption "In re Ogden New York Services, Inc., et al.," Case Nos. 02-40826 (CB), et al. "Code" means the Internal Revenue Code of 1986, as amended. "Commission" means the Securities and Exchange Commission. "Company" means the party named as such in the introductory paragraph to this Indenture, and any and all successors thereto. "Company Order" has the meaning assigned to it in Section 2.2(c). "Consolidated Cash Interest Expense" means, for any period, (i) Consolidated Interest Expense for such period minus (ii) to the extent included in Consolidated Interest Expense for such period, the change in accreted value of the High Yield Notes, interest paid in kind and not in cash during such period and any other amounts not paid or payable in cash. "Consolidated Coverage Ratio" means, with respect to the Company and its Consolidated Subsidiaries, as of any date of determination, the ratio of: (1) the aggregate amount of Adjusted EBITDA for the period of the most recent four consecutive fiscal quarters (commencing on or after the Issue Date) for which internal financial statements are available prior to the date of such determination to (2) Consolidated Cash Interest Expense for such four fiscal quarters; provided, however, that: (A) if the Company or any of its Restricted Subsidiaries has incurred any Indebtedness since the beginning of such period that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio is an incurrence of Indebtedness, Adjusted EBITDA and Consolidated Cash Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been incurred on the first day of such period (in each case other than Indebtedness incurred under any revolving credit facility, in which case interest expense shall be computed based upon the average daily balance of such Indebtedness during the applicable period) and the discharge of any other Indebtedness repaid, repurchased, defeased (whether legally or as to covenants only) or otherwise discharged with the proceeds of such new Indebtedness as if such discharge had occurred on the first day of such period; (B) if the Company or any of its Restricted Subsidiaries has repaid, repurchased, defeased or otherwise discharged, including permanent reductions in letter of credit commitments, any Indebtedness since the beginning of such period or if any Indebtedness is to be repaid, repurchased, defeased (whether legally or as to covenants only) or otherwise discharged, including permanent reductions in letter of credit commitments (in each case, if such Indebtedness has been permanently repaid and has not been replaced, other than Indebtedness incurred under any revolving credit facility unless such Indebtedness is permanently reduced, in which case interest expense shall be computed based upon the average daily balance of such Indebtedness during the applicable period) on the date of the transaction giving rise to the need to calculate the Consolidated Coverage Ratio, Adjusted EBITDA and Consolidated Cash Interest Expense for such period shall be calculated on a pro forma basis as if such discharge had occurred on the first day of such period and as if the Company or such Restricted Subsidiary has not earned any interest income actually earned during such period in respect of cash or Cash Equivalents used to repay, repurchase, defease or otherwise discharge such Indebtedness; (C) if since the beginning of such period, the Company or any of its Restricted Subsidiaries has made any Asset Sale, Adjusted EBITDA for such period shall be reduced by an amount equal to Adjusted EBITDA (if positive) directly attributable to the assets that are the subject of such Asset Sale for such period or increased by an amount equal to Adjusted EBITDA (if negative) directly attributable thereto for such period, and Consolidated Cash Interest Expense for such period shall be reduced by an amount equal to the Consolidated Cash Interest Expense directly attributable to any Indebtedness of the Company or any Restricted Subsidiary of the Company repaid, repurchased, defeased or otherwise discharged with respect to the Company and its continuing Restricted Subsidiaries in connection with such Asset Sale for such period (or, if the Capital Stock of any Restricted Subsidiary is sold, the Consolidated Cash Interest Expense for such period directly attributable to the Indebtedness of such Restricted Subsidiary to the extent the Company and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such sale); (D) if since the beginning of such period, the Company or any of its Restricted Subsidiaries (by merger or otherwise) has made an Investment in any Restricted Subsidiary (or any Person that becomes a Restricted Subsidiary) or an acquisition of assets, including any such Investment or acquisition of assets occurring in connection with a transaction causing a calculation to be made hereunder, which constitutes all or substantially all of an operating unit of a business, Adjusted EBITDA and Consolidated Cash Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any Indebtedness) as if such Investment or acquisition occurred on the first day of such period; and (E) if since the beginning of such period, any Person (that subsequently became a Restricted Subsidiary of the Company or was merged with or into the Company or any of its Restricted Subsidiaries since the beginning of such period) shall have made any Asset Sale or any Investment or acquisition of assets that would have required an adjustment pursuant to clause (C) or (D) above if made by the Company or any of its Restricted Subsidiaries during such period, Adjusted EBITDA and Consolidated Cash Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such Asset Sale, Investment or acquisition of assets occurred on the first day of such period. For purposes of this definition, whenever pro forma effect is to be given to an acquisition of assets, the amount of income or earnings relating thereto and the amount of Consolidated Cash Interest Expense associated with any Indebtedness incurred in connection therewith, the pro forma calculations shall be determined in good faith by a responsible financial or accounting officer of the Company. Any such pro forma calculations shall reflect any pro forma expense and cost reductions attributable to such acquisitions, to the extent such expense and cost reduction would be consistent with Regulation S-X, promulgated under the Securities Act, as such regulation is in effect from time to time, and permitted by the Commission to be reflected in pro forma financial statements included in a registration statement filed with the Commission. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term as at the date of determination in excess of twelve months). "Consolidated Coverage Ratio Test" means, that the Company's Consolidated Coverage Ratio at the time of any incurrence of Indebtedness, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds therefrom, as if the same had occurred at the beginning of the most recently ended four fiscal quarter period of the Company (commencing on or after the Issue Date) for which internal financial statements are available, is no less than 2.00 to 1.00. "Consolidated Interest Expense" means, for any period, (i) the total interest expense, net of interest income, of the Company and its Consolidated Subsidiaries, determined on a consolidated basis in accordance with GAAP, minus (ii) interest expense incurred by the Company or its Consolidated Subsidiaries in such period in connection with Indebtedness constituting Non-Recourse Debt or Limited Recourse Debt, determined on a consolidated basis in accordance with GAAP, plus (iii) to the extent incurred by the Company or its Consolidated Subsidiaries in such period but not included in such interest expense, without duplication, determined in each case on a consolidated basis in accordance with GAAP, except to the extent related to Non-Recourse Debt and Limited Recourse Debt: (1) interest expense attributable to Capital Lease Obligations and the imputed interest with respect to Attributable Debt; (2) amortization of debt discount; (3) amortization of debt issuance costs (other than any such costs associated with the Indebtedness incurred by the Company or its Subsidiaries in accordance with the Plan of Reorganization); (4) amortization of capitalized interest; (5) noncash interest expense; (6) commissions, discounts and other fees and charges attributable to letters of credit and bankers' acceptance financings; (7) interest or dividends accrued and unpaid on any Indebtedness of any other Person to the extent such Indebtedness is Guaranteed by the Company or any Consolidated Subsidiary; (8) net payments, if any, pursuant to Hedging Obligations (including amortization of fees); (9) dividends in respect of all Disqualified Stock of the Company and all Preferred Stock of any of its Consolidated Subsidiaries, to the extent held by Persons other than the Company or another Consolidated Subsidiary; and (10) cash contributions to any employee stock ownership plan or similar trust to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than the Company) in connection with Indebtedness incurred by such plan or trust. "Consolidated Net Income" means, for any period, the net income or loss of the Company and its Consolidated Subsidiaries for such period determined in accordance with GAAP; provided, however, that: (1) net income of any Person (other than the Company) which is not a Restricted Subsidiary, shall be excluded from such Consolidated Net Income, except that: (A) subject to the limitations contained in clause (4) below, the Company's equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Company or a Restricted Subsidiary of the Company as a dividend or other distribution (subject, in the case of a dividend or other distribution made to a Restricted Subsidiary of the Company, to the limitations contained in clause (2) below); and (B) the Company's equity in a net loss of any such Person for such period shall be included in determining such Consolidated Net Income; (2) net income (or loss) of any Restricted Subsidiary of the Company, other than a Guarantor, to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of that income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or is, directly or indirectly, restricted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Restricted Subsidiary or its stockholders or other holders of its equity, which restrictions have not been legally and effectively waived, shall be excluded from such Consolidated Net Income except that: (A) subject to the limitations contained in clause (4) below, the Company's equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Restricted Subsidiary during such period to the Company or another Restricted Subsidiary of the Company as a dividend or other distribution (subject, in the case of a dividend or other distribution made to another Restricted Subsidiary of the Company, to the limitation contained in this clause); and (B) the Company's equity in a net loss of any such Restricted Subsidiary for such period shall be included in determining such Consolidated Net Income; (3) any gain (or loss) realized upon the sale or other disposition of any asset of the Company or any of its Restricted Subsidiaries (including pursuant to any Sale/Leaseback Transaction) that is not sold or otherwise disposed of in the ordinary course of business and any gain (or loss) realized upon the sale or other disposition of any Capital Stock of any Subsidiary of the Company shall be excluded from such Consolidated Net Income (without regard to abandonments or reserves relating thereto); (4) amounts specified in clause (ii)(a) of the definition of Adjusted EBITDA (determined in accordance with such definition) shall be excluded from such Consolidated Net Income; (5) any extraordinary gain or loss shall be excluded from such Consolidated Net Income; (6) the cumulative effect of a change in accounting principles shall be excluded from such Consolidated Net Income; (7) gains or losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP shall be excluded from such Consolidated Net Income; (8) any non-cash deferred tax expense shall be excluded from such Consolidated Net Income; (9) Fresh Start Charges and reorganization charges taken in connection with the Plan of Reorganization shall be excluded from such Consolidated Net Income; (10) amortization of debt issuance costs in respect of Indebtedness incurred by the Company or its Subsidiaries in accordance with the Plan of Reorganization shall be excluded from such Consolidated Net Income; (11) any charges resulting from the application of Statement of Financial Accounting Standards No. 142 or 145 shall be excluded from such Consolidated Net Income; and (12) the results of operations of CPIH and its Subsidiaries shall be excluded in determining such Consolidated Net Income. "Consolidated Subsidiaries" means the Restricted Subsidiaries of the Company; provided, however, that the interest of the Company or any of its Restricted Subsidiaries in an Unrestricted Subsidiary will be accounted for as an Investment. "Continuing Directors" means, as of any date of determination, those members of the Board of Directors of the Company who: (a) were members of the Board of Directors on the Issue Date; or (b) were nominated for election or elected to the Board of Directors with the affirmative vote of, or whose election or appointment was otherwise approved or ratified (whether before or after nomination or election) by, at least a majority of the Continuing Directors who were members of the Board of Directors at the time of the nomination, election or approval, as applicable. "Corporate Services Reimbursement Agreement" means the corporate services and expense reimbursement agreement entered into by DHC and the Company dated March [__], 2004, as such agreement may be amended, restated, supplemented or otherwise modified from time to time to the extent permitted thereunder. "Corporate Trust Office" means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at U.S. Bank National Association, 225 Asylum Street, 23rd Floor, Hartford, Connecticut, Attention: Corporate Trust Services, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company). "CPIH" means Covanta Power International Holdings, Inc., a Delaware corporation, and any and all successors thereto. "CPIH Reimbursement Agreement" means the Management Services & Reimbursement Agreement entered into by CPIH, the Company and certain of their respective Subsidiaries on the Issue Date, as such agreement may be amended, supplemented or otherwise modified from time to time. "Credit Agreements" means the First Lien Letter of Credit Facility and the Second Lien Letter of Credit Facility (each being referred to individually herein as a "Credit Agreement"). "Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law. "Default" means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default. "Defaulted Interest" means overdue installments of interest on the Notes. "Deposit Account" means a demand, time, savings, passbook or similar account maintained with a Person engaged in the business of banking, including a savings bank, savings and loan association, credit union or trust company, [in each case that qualifies under clause (iii) of the definition of "Cash Equivalents".] "DHC" means Danielson Holding Corporation, a Delaware corporation, and any and all successors thereto. "Disqualified Stock" means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of such Capital Stock), or upon the happening of any event, matures, excluding any maturity as the result of the redemption thereof at the option of the issuer thereof, or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of such Capital Stock, in whole or in part, on or prior to the date on which the Notes mature, except to the extent that such Capital Stock is solely redeemable with, or solely exchangeable for, any Capital Stock that is not Disqualified Stock; provided that only the portion of the Capital Stock or other security which so matures, is mandatorily redeemable or is so redeemable at the option of the holder prior to such date shall be deemed to be Disqualified Stock; provided further that if such Capital Stock or other security is issued to and held by any employee pursuant to any plan program or arrangement or any plan for the benefit of employees of the Company or its Subsidiaries or by any such plan to such employees, such Capital Stock or other security shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Company or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee's termination, death or disability. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of such Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change of control or an Asset Sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 3.6. "DTC" means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depositary institution hereinafter appointed by the Company that is a clearing agency registered under the Exchange Act. "Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). "Event of Default" has the meaning assigned to it in Section 6.1. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Existing Indebtedness" means Indebtedness of the Company and its Restricted Subsidiaries (other than Indebtedness under the Credit Agreements) in existence on the Issue Date or otherwise issued in accordance with the Plan of Reorganization. "First Lien Letter of Credit Facility" means the Credit Agreement, dated as of March [ ], 2004, by and among the Company, the guarantors party thereto, Deutsche Bank AG, Securities, Inc., as documentation agent, Bank of America, N.A., as administrative agent, and the lenders party thereto, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended (including any amendment and restatement thereof), modified, renewed, supplemented, refunded, replaced or refinanced in whole or in part from time to time, including any agreement, extending the maturity of, consolidating or otherwise restructuring (including adding subsidiaries of the Company as additional guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same of any other agent, lender or group; provided, however, that in no case shall any such amendment, modification, renewal, supplementation, refunding, replacement or refinancing cause the First Lien Letter of Credit Facility to fail to comply with clause 3(b) of the definition of Senior Indebtedness, without regards to the duration of letters of credit issued thereunder. "Fiscal Year" means the fiscal year of the Company and its subsidiaries ending on December 31st of each calendar year. "Fresh Start Charges" means, for any period, the aggregate non-cash charges of the Company and its Restricted Subsidiaries arising from the application of fresh start accounting principles, determined on a consolidated basis in accordance with GAAP. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, as in effect from time to time. "Global Note" means any Note issued in fully-registered certificated form to DTC (or its nominee), as depositary for the beneficial owners thereof, which shall be substantially in the form of Exhibit A, with appropriate legends as specified in Exhibit A. "Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person: (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (2) entered into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term "Guarantee" shall not include (i) endorsements of negotiable instruments for collection or deposit in the ordinary course of business or (ii) Performance Guarantees. The term "guarantee" used as a verb has a corresponding meaning. "Hedging Obligations" means, with respect to any specified Person, the obligations of such Person under: (1) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements; (2) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or interest rates; and (3) forward agreements or arrangements designed to hedge against fluctuation in electricity rates pertaining to electricity produced by a Project, so long as the contractual arrangements relating to such Project contemplate that the Company or its Subsidiaries shall deliver such electricity to third parties. "High Yield Notes Documents" means those 8.25% Senior Secured Notes due 2011 (the "High Yield Notes") issued by the Company pursuant to the indenture between the Company, the subsidiary guarantors named therein and U.S. Bank National Association, as trustee, dated March [__], 2004 (the "High Yield Notes Indenture"), and all related documents, as such notes, indenture and such other documents and the obligations thereunder may be amended, extended, restated, supplemented or otherwise modified from time to time. "Holder" means the Person in whose name a Note is registered in the Note Register. "Indebtedness" means, with respect to any Person on any date of determination (without duplication) the following items if and to the extent that any of them (other than items specified under clauses (3), (8) and (9) below) would appear as a liability or, in the case of clause (6) only, Preferred Stock on the balance sheet of such Person, prepared in accordance with GAAP: (1) the principal amount of and premium, if any, in respect of indebtedness of such Person for borrowed money; (2) the principal amount of and premium, if any, in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (3) all obligations of such Person in respect of letters of credit, bankers' acceptances, or other similar instruments (including reimbursement obligations with respect thereto, but excluding obligations in respect of letters of credit issued in respect of Trade Payables); (4) all obligations of such Person to pay the deferred and unpaid purchase price of property or services (except Trade Payables), which purchase price is due more than twelve months after the date of placing such property in service or taking delivery and title thereto or the completion of such services; (5) all Capital Lease Obligations and all Attributable Debt of such Person; (6) the amount of all obligations of such Person with respect to the redemption, repayment or repurchase of any Disqualified Stock or, with respect to any Subsidiary of such Person, any Preferred Stock (but excluding, in each case, any accrued dividends); (7) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of Indebtedness of such Person shall be the lesser of: (A) the fair market value of such asset at such date of determination and (B) the amount of such Indebtedness of such other Persons; (8) Hedging Obligations of such Person; (9) all obligations of such Person in respect of Insurance Premium Financing Arrangements; and (10) all obligations of the type referred to in clauses (1) through (9) of other Persons and all dividends or distributions of other Persons for the payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee. The amount of Indebtedness of any Person at any date will be the outstanding balance at such date of all unconditional obligations as described above and the maximum liability, upon the occurrence of the contingency giving rise to the obligation, of any contingent obligations described above, at such date; provided, however, that the amount outstanding at any time of any Indebtedness issued with original issue discount will be deemed to be the face amount of such Indebtedness less the remaining unaccreted portion of the original issue discount of such Indebtedness at such time, as determined in accordance with GAAP. "Indenture" means this Indenture as amended or supplemented from time to time, including the Exhibits hereto. "Insurance Premium Financers" means Persons who are not Affiliates of the Company who advance insurance premiums for the Company and its Subsidiaries pursuant to Insurance Premium Financing Arrangements. "Insurance Premium Financing Arrangements" means, with respect to any Person, agreements with Insurance Premium Financers pursuant to which such Insurance Premium Financers advance insurance premiums for or on behalf of such Person. Insurance Premium Financing Arrangements (i) shall not provide, for the benefit of such Insurance Premium Financers, any security interest in any property of the Company or any of its Subsidiaries other than gross unearned premiums for the insurance policies that are the subject of such arrangements, and (ii) shall not contain any provision or contemplate any transaction prohibited by the Indenture. "Intercreditor Agreement" means that certain intercreditor agreement, dated as of March [__], 2004, by and among the Company, the Company's subsidiaries listed on the signature pages thereto, the financial institutions listed on the signature pages thereto, Bank of America, N.A., as administration agent, Deutsche Bank Securities, Inc., as documentation agent, DHC and the trustee of the High Yield Notes Indenture, as amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time. "Interest Payment Date" means the stated due date of an installment of principal and interest on the Notes as specified in the Form of Face of Note contained in Exhibit A. "Investments" means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the form of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the Company or any Subsidiary of the Company sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Company's Investments in such Restricted Subsidiary that were not sold or disposed of in an amount determined as provided in the final paragraph of Section 3.6. Any deemed investment in any Person not involving a transfer of cash or other assets to such Person and resulting solely from the application of pushdown accounting rules will not constitute an Investment. "Investor Parties" means (i) D.E. Shaw Laminar Portfolios, L.L.C., (ii) SZ Investments, LLC, and (iii) Third Avenue Value Fund, Inc. "Issue Date" means March [__], 2004. "Legal Holiday" has the meaning assigned to it in Section 11.7. "Limited Recourse Debt" means, with respect to any Subsidiary of the Company, Indebtedness of such Subsidiary with respect to which the recourse of the holder or obligee of such Indebtedness is limited to (i) assets associated with a Project (which in any event shall not include assets held by the Company or any Subsidiary other than a Subsidiary whose sole business is the ownership and/or operation of such Project and substantially all of whose assets are associated with such Project) in respect of which such Indebtedness was incurred or (ii) the Equity Interests in such Subsidiary, but in the case of clause (ii) only if such Subsidiary's sole business is the ownership and/or operation of such Project and substantially all of such Subsidiary's assets are associated with such Project. Indebtedness of a Subsidiary of the Company shall not fail to be Limited Recourse Debt solely by virtue of the fact that the holders of such Limited Recourse Debt have recourse to the Company or another Subsidiary of the Company pursuant to a Performance Guaranty. "Management Investors" means the officers and employees of the Company or a Subsidiary of the Company who acquire Voting Stock of DHC or the Company on or after the Issue Date. "Maturity Date" means March [__], 2012. "Net Proceeds" means the aggregate Cash proceeds received by the Company in respect of any Asset Sale (including, without limitation, any Cash received upon the sale or other disposition of any non-Cash consideration received in any Asset Sale), net of (i) the costs directly related to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, sales commissions and consent fees, (ii) taxes paid or payable as a result of such Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, (iii) amounts required to be applied to the repayment of indebtedness secured by a lien on the asset or assets that were the subject of such Asset Sale, and (iv) any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP. "Non-Recourse Debt" means Indebtedness: (1) as to which neither the Company, any Guarantor, nor any Restricted Subsidiary (i) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), (ii) is directly liable as a guarantor or otherwise, or (iii) constitutes the lender; and (2) no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Notes) of the Company, any Guarantor, or any Restricted Subsidiary to declare a default on such other Indebtedness or cause the payment of such other Indebtedness to be accelerated or payable prior to its stated maturity; provided that Performance Guarantees not prohibited under the High Yield Note Indenture will not cause any such Indebtedness not to be Non-Recourse Debt. "Note Custodian" means the custodian with respect to any Global Note appointed by DTC, or any successor Person thereto, and shall initially be the Trustee. "Note Register" has the meaning assigned to it in Section 2.3(a). "Notes" means any of the Company's 7.5% Subordinated Unsecured Notes due 2012 issued and authenticated pursuant to this Indenture. "Obligations" means, with respect to any Indebtedness, any principal, interest (including, without limitation, Post-Petition Interest), penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing such Indebtedness. "Officer" means, when used in connection with any action to be taken by the Company, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Controller or the Secretary of the Company. "Officers' Certificate" means, when used in connection with any action to be taken by the Company, a certificate signed by two Officers or by an Officer and either an Assistant Treasurer or an Assistant Secretary of the Company and delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who, unless otherwise indicated in this Indenture, may be an employee of counsel for the Company and who shall be reasonably acceptable to the Trustee. "Outstanding Notes" means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except: (A) Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation; (B) Notes, or portions thereof, for the payment or redemption of which money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or an Affiliate of the Company) in trust or set aside and segregated in trust by the Company or an Affiliate of the Company (if the Company or such Affiliate of the Company is acting as Paying Agent) for the Holders of such Notes; provided that, if Notes (or portions thereof) are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (C) Notes which have been surrendered pursuant to Section 2.8 or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company, provided, however, that in determining whether the Holders of the requisite aggregate principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company, any other obligor of the Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Notes and that the pledgee is not the Company, any other obligor of the Notes or any Affiliate of the Company or of such other obligor. "Paying Agent" has the meaning assigned to it in Section 2.3(a). "Payment Blockage Notice" has the meaning assigned to it in Section 10.3(a)(B). "Performance Guaranty" means any agreement entered into by the Company or any Restricted Subsidiary of the Company under which the Company or such Restricted Subsidiary (i) guarantees the performance of a Subsidiary of the Company under a lease or sublease or under a service, management or operating agreement relating to a Project or (ii) guarantees the performance of CPIH or any of its Subsidiaries under a lease or sublease or under a service, management or operating agreement in existence on the Issue Date, as amended or modified on terms not materially less advantageous to the Company or such Restricted Subsidiary. "Permitted Business" means any business of the type engaged in by the Company or any of its Restricted Subsidiaries as of the Issue Date or any business reasonably related, ancillary or complementary thereto. "Permitted Holders" means (i) DHC and the Management Investors and (ii) any Related Party of a Person referred to in the immediately preceding clause (i). "Permitted Investment" means an Investment by the Company or any Restricted Subsidiary of the Company: (1) in the Company, a Restricted Subsidiary of the Company (other than a Bankrupt Subsidiary) or a Person that will, upon the making of such Investment, become a Restricted Subsidiary of the Company; (2) consisting of intercompany loans to Bankrupt Subsidiaries, so long as (a) the proceeds of such loans are applied to working capital, maintenance, operation, payroll and other liquidity requirements in the ordinary course of business of such Bankrupt Subsidiaries, and (b) the aggregate amount of such intercompany loans outstanding to all Bankrupt Subsidiaries at any time does not exceed $3.0 million; (3) in another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, the Company or a Restricted Subsidiary of the Company; (4) in Cash Equivalents; (5) in receivables owing to the Company or any Restricted Subsidiary of the Company if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Company or any such Restricted Subsidiary deems reasonable under the circumstances; (6) in payroll, travel and similar advances to employees to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business; (7) in loans or advances to employees made in the ordinary course of business and not exceeding $4.0 million in the aggregate outstanding at any one time, of which not more than $2.0 million shall be for purposes other than employee relocation expenses; (8) received in settlement of debts created in the ordinary course of business and owing to the Company or any Restricted Subsidiary or in satisfaction of judgments; (9) in any Person to the extent such Investment represents the non-cash portion of the consideration received for an Asset Sale that was made pursuant to and in compliance with Section 3.7 or a transaction not constituting an Asset Sale by reason of the $10.0 million threshold contained in the definition thereof; (10) that constitutes a Hedging Obligation or commodity hedging arrangement entered into for bona fide hedging purposes of the Company in the ordinary course of business and otherwise in accordance with this Indenture; (11) in securities of any trade creditor, supplier or customer received in settlement of obligations or pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditor, supplier or customer; (12) acquired as a result of a foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; (13) consisting of purchases and acquisitions of inventory, supplies, materials, equipment or contract rights or licenses or leases of intellectual property, in any case, in the ordinary course of business; (14) consisting of intercompany Indebtedness not prohibited under the High Yield Note Indenture; (15) consisting of a Guarantee not prohibited under the High Yield Note Indenture; (16) the consideration for which consists solely of shares of Capital Stock (other than Disqualified Stock) of the Company; (17) required to be made by the Company and its Restricted Subsidiaries under Performance Guarantees not prohibited under the High Yield Note Indenture; (18) deemed to have been made as a result of the acquisition of a Person that at the time of such acquisition held instruments constituting Investments that were not made or acquired in contemplation of such acquisition; (19) in prepaid expenses and leases, and in utility and workers' compensation performance and other similar deposits made in ordinary course of business; (20) in CPIH and its Subsidiaries and in Unrestricted Subsidiaries of the Company to fund administrative services including, but not limited to, payroll, cash management, administration, billing, procurement, and equity investments the Company is required to make in CPIH and its Subsidiaries in a net amount not to exceed $20.0 million in the aggregate outstanding at any one time; (21) under the CPIH Reimbursement Agreement or Tax Sharing Agreement; (22) advances by the Company or a Restricted Subsidiary of the Company to fund expansion, replacements or improvements in respect of a publicly-owned Project, which advances are reimbursable by the owner of the Project; (23) made pursuant to the Plan of Reorganization; and (24) other Investments having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value) not exceeding $70.0 million in the aggregate outstanding at any one time. "Permitted Junior Securities" means any securities of the Company or any other Person that are: (A) common equity securities without special covenants; or (B) unsecured debt securities expressly subordinated in right of payment to all Senior Indebtedness (as modified or issued in exchange for Senior Indebtedness by the Plan of Reorganization or other court order pursuant to which such securities are issued) that may at the time be outstanding, to the same extent as, or to a greater extent than, the Notes are subordinated as provided in the Indenture, and that have a final maturity date and a Weighted Average Life to Maturity which is at least one year after than the final maturity of all such Senior Indebtedness. "Permitted Refinancing Indebtedness" means any Indebtedness of the Company or any of its Restricted Subsidiaries incurred or issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund (A) other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that: (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased (whether legally or as to covenants only) or refunded (plus all accrued interest on such Indebtedness and the amount of all fees, expenses and premiums incurred in connection therewith); provided, however, that, notwithstanding the foregoing, Permitted Refinancing Indebtedness with respect to the Company and its Restricted Subsidiaries of the Existing Indebtedness, may be incurred in an amount not in excess of 110% of the principal amount of the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest on such Indebtedness and the amount of all fees, expenses and premiums incurred in connection therewith); (2) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and (4) such Indebtedness is incurred either by the Company or by the Restricted Subsidiary of the Company which is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; or (B) Limited Recourse Debt or Non-Recourse Debt of municipally-sponsored privately-owned Projects so long as the terms of such Permitted Refinancing Indebtedness, taken as a whole, are not materially more restrictive to the Company and its Subsidiaries. "Person" means an individual, partnership, limited partnership, corporation, company, limited liability company, unincorporated organization, trust, joint venture, or governmental agency or political subdivision thereof. "Plan of Reorganization" means the Debtors' Second Joint Plan of Reorganization under Chapter 11 of the Bankruptcy Code, filed with the United States Bankruptcy Court for the Southern District of New York on December 18, 2003, as amended pursuant to the confirmation order thereof dated March [________], 2004. "Post-Petition Interest" means all interest accrued or accruing after the commencement of any insolvency or liquidation proceeding (and interest that would accrue but for the commencement of any insolvency or liquidation proceeding) in accordance with an at the contract rate (including, without limitation, any rate applicable upon default) specified in the agreement or instrument creating, evidencing or governing any Indebtedness, whether or not, pursuant to applicable law or otherwise, the claim for such interest is allowed as a claim in such insolvency or liquidation proceeding. "Preferred Stock" as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) that is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person. "Project" means any waste-to-energy facility, electrical generation plant, cogeneration plant, water treatment facility or other facility for the generation of electricity or engaged in another line of business in which the Company and its Subsidiaries are permitted to be engaged hereunder for which a Subsidiary or Subsidiaries of the Company was, is or will be (as the case may be) an owner, operator, manager or builder, and shall also mean any two or more of such plants or facilities in which an interest has been acquired in a single transaction, so long as such interest constitutes an existing Investment on the Issue Date permitted hereunder; provided however, that a Project shall cease to be a Project at such time that the Company or any of its Subsidiaries ceases to have any existing or future rights or obligations (whether direct or indirect, contingent or matured) associated therewith. "Record Date" has the meaning assigned to it in the Form of Face of Note contained in Exhibit A. "Redemption Date" means, with respect to any redemption of Notes, the date fixed for such redemption pursuant to this Indenture and the Notes. "Registrar" has the meaning assigned to it in Section 2.3(a). "Related Party" means (a) with respect to DHC, (i) any direct or indirect wholly-owned Subsidiary of DHC, any Approved DHC Investor and any officer, director or employee of DHC or any wholly-owned Subsidiary of DHC, (ii) any spouse or lineal descendant (including by adoption and stepchildren) of the officers, directors and employees referred to in clause (a)(i) of this definition or (iii) any trust, corporation or partnership 100%-in-interest of the beneficiaries, stockholders or partners of which consists of one or more of the persons described in clauses (a)(i) or (a)(ii) of this definition; or (b) with respect to any Management Investor (i) any spouse or lineal descendant (including by adoption and stepchildren) of such officer or employee or (ii) any trust, corporation or partnership 100%-in-interest of the beneficiaries, stockholders or partners of which consists of such officer or employee, any of the persons described in clause (b)(i) of this definition or any combination thereof. "Representative" means any trustee or other authorized agent or other Representative in any issue of Senior Indebtedness. "Restricted Investment" means an Investment other than a Permitted Investment. "Restricted Subsidiary" of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary. "Sale/Leaseback Transaction" means an arrangement relating to property now owned or hereafter acquired by the Company whereby the Company transfers such property to a Person and the Company leases it from such Person. "Second Lien Letter of Credit Facility" means the Credit Agreement, dated as of [ ], 2004, by and among the Company, each of its subsidiaries listed on the signature pages thereof, the financial institutions listed on the signature pages thereof and Bank One, N.A., as administrative agent, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended (including any amendment and restatement thereof), modified, renewed, supplemented, refunded, replaced or refinanced in whole or in part from time to time, including any agreement extending the maturity of, consolidating or otherwise restructuring (including adding Subsidiaries of the Company as additional guarantors thereunder) all or any portion of the Indebtedness under such agreement or any successor or replacement agreement and whether by the same or any other agent, lender or group; provided, however, that in no case shall any such amendment, modification, renewal, supplementation, refunding, replacement or refinancing cause the Second Lien Letter of Credit Facility to fail to comply with clause 3(b) of the definition of Senior Indebtedness, without regards to the duration of letters of credit issued thereunder. "Securities Act" means the Securities Act of 1933, as amended. "Senior Indebtedness" means, at any date, all Obligations of the Company under: (1) the Credit Agreements as set forth in the Plan of Reorganization, (2) the High Yield Notes Documents as set forth in the Plan of Reorganization, (3) Indebtedness of the Company incurred or issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund the Credit Agreements and the High Yield Notes Documents, provided, that (a) if the principal amount of such Indebtedness exceeds the principal amount of such Indebtedness as set forth in the Plan of Reorganization (plus all accrued interest on such Indebtedness and the amount of all fees, expenses and premiums incurred in connection therewith) extended, refinanced, renewed, replaced, defeased (whether legally or as to covenants only) or refunded, such excess must fall within the limits set forth under (4) below, and (b) such Indebtedness has a final Stated Maturity later than the final Stated Maturity of and has a Weighed Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed replaced, defeased or refunded, and (4) any other Indebtedness of the Company with a principal amount of up to $50,000,000, that is designated by its express terms to be senior to the Notes. "Significant Subsidiary" means any Subsidiary that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date. "Special Record Date" has the meaning assigned to it in Section 2.11(b). "Stated Maturity" means, with respect to any installment of interest or principal on any Indebtedness, the fixed date on which the payment of interest or principal is scheduled to be paid in the documentation governing such Indebtedness, but does not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the fixed date scheduled for the payment thereof. "Subsidiary" means, with respect to any specified Person: (1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and (2) any partnership (i) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (ii) the only general partners of which are that Person or one or more Subsidiaries of such Person (or any combination thereof); provided, however, that, except to the extent expressly indicated, the term "Subsidiary," when used with respect to the Company or its Restricted Subsidiaries, shall not include CPIH or any of its Subsidiaries. "Tax Sharing Agreement" means the Tax Sharing Agreement among DHC, the Company and CPIH and any amendments, modifications or extensions thereof on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms of such agreement as in effect on the Issue Date. "TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as in effect on the date of this Indenture (except as otherwise provided in this Indenture). "Trade Payables" means, with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors created, assumed or guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of goods or services. "Trustee" means the party named as such in the introductory paragraph of this Indenture until a successor replaces it in accordance with the terms of this Indenture and, thereafter, means the successor. "Trust Officer" means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture. "Unrestricted Subsidiary" means any Subsidiary of the Company that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors, but only to the extent that such Subsidiary: (1) has no Indebtedness other than Non-Recourse Debt; (2) is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are not materially less favorable to the Company or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of the Company; (3) is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (i) to subscribe for additional Equity Interests or (ii) to maintain or preserve such Person's financial condition or to cause such Person to achieve any specified levels of operating results; and (4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries. Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced by filing with the Trustee a certified copy of the resolution of the Board of Directors giving effect to such designation and an Officer's Certificate certifying that such designation complied with the preceding conditions and was permitted by Section 3.10. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements to be an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date. The Board of Directors may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if no Default or Event of Default would be in existence following such designation. "U.S. Government Obligations" means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer's option. "U.S. Legal Tender" means such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts. "Voting Stock" of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the board of directors or comparable governing body of such Person. "Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (1) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (2) the then outstanding principal amount of such Indebtedness. 1.2 Incorporation by Reference of Trust Indenture Act. If any provision of this Indenture limits, qualifies or conflicts with the duties that would be imposed by any of Sections 310 to 317 of the TIA through operation of Section 318(c) thereof on any person if this Indenture were qualified under the TIA, such imposed duties shall control. "obligor" on the indenture securities means the Company and any other obligor on the indenture securities. All other TIA terms used in this Indenture that are defined by the TIA, defined in the TIA by reference to another statute or defined by Rules or Regulations of the Commission have the meanings assigned to them by such definitions. 1.3 Rules of Construction. Unless the context otherwise requires: (i) a term has the meaning assigned to it; (ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (iii) "or" is not exclusive; (iv) "including" means including without limitation; and (v) words in the singular include the plural and words in the plural include the singular. ARTICLE II THE NOTES 2.1 Form and Dating. (a) The Notes will be issued in fully-registered certificated form without coupons, and only in denominations of $500 and any integral multiple thereof, and will be issued initially solely in global form. The Notes and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A. (b) The terms and provisions of the Notes, the form of which is in Exhibit A, shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture expressly agree to such terms and provisions and to be bound thereby. Except as otherwise expressly permitted in this Indenture, all Notes shall be identical in all respects. Notwithstanding any differences among them, all Notes issued under this Indenture shall vote and consent together on all matters as one class. (c) The Notes may have notations, legends or endorsements as specified in Exhibit A or as otherwise required by law, stock exchange rule or DTC rule or usage. The Company and the Trustee shall approve the form of the Notes and any notation, legend or endorsement on them. Each Note shall be dated the date of its authentication. 2.2 Execution and Authentication. (a) Two Officers shall sign the Notes for the Company by manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless. (b) A Note shall not be valid until an authorized signatory of the Trustee manually authenticates the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. (c) At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery Notes upon a written order of the Company signed by two Officers or by an Officer and either an Assistant Treasurer or an Assistant Secretary of the Company (the "Company Order"). A Company Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated. The aggregate principal amount that may be authenticated and delivered under this Indenture is limited up to [$50 million], except for Notes authenticated and delivered in exchange for or in lieu of Notes pursuant to Sections 2.7, 2.8, 2.9 and 4.7. (d) The Trustee may appoint an agent (the "Authenticating Agent") reasonably acceptable to the Company to authenticate the Notes. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. 2.3 Registrar and Paying Agent. (a) The Company shall maintain an office or agency in the Borough of Manhattan, City of New York, where Notes may be presented or surrendered for registration of transfer or for exchange (the "Registrar"), where Notes may be presented for payment (the "Paying Agent") and for the service of notices and demands to or upon the Company in respect of the Notes and this Indenture. The Registrar shall keep a register of the Notes and of their transfer and exchange (the "Note Register"). The Company may have one or more co-Registrars and one or more additional paying agents. The term "Paying Agent" includes any additional paying agent. (b) The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-Registrar not a party to this Indenture, which shall incorporate the terms of the TIA. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.7. The Company may act as Paying Agent, Registrar, co-Registrar or transfer agent. (c) The Company initially appoints the Trustee at its Corporate Trust Office as Registrar, Paying Agent and agent for service of demands and notices in connection with the Notes and this Indenture, until such time as another Person is appointed as such. 2.4 Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of or interest on the Notes and shall notify the Trustee in writing of any Default by the Company in making any such payment. If the Company or an Affiliate of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this Section 2.4, the Paying Agent (if other than the Company) shall have no further liability for the money delivered to the Trustee. Upon any proceeding under any Bankruptcy Law with respect to the Company or any Affiliate of the Company, if the Company or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Company or such Affiliate as Paying Agent. 2.5 Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, or to the extent otherwise required under the TIA, the Company shall furnish to the Trustee, in writing at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders. 2.6 Global Note Provisions. (a) Each Global Note initially shall: (i) be registered in the name of DTC or the nominee of DTC; (ii) be delivered to the Note Custodian; and (iii) bear the appropriate legend, as set forth on Exhibit A. Any Global Note may be represented by more than one certificate. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Note Custodian, as provided in this Indenture. (b) Members of, or participants in, DTC ("Agent Members") shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Note Custodian under such Global Note, and DTC may be treated by the Company, the Trustee, the Paying Agent and the Registrar and any of their agents as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agent or the Registrar or any of their agents from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of an owner of a beneficial interest in any Global Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes. (c) Except as provided below, owners of beneficial interests in Global Notes will not be entitled to receive Certificated Notes. Certificated Notes shall be issued to all owners of beneficial interests in a Global Note in exchange for such interests only if: (A) DTC notifies the Company that it is unwilling or unable to continue as depositary for such Global Note or DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case a successor depositary is not appointed by the Company within 120 days of such notice, (B) the Company executes and delivers to the Trustee and Registrar an Officers' Certificate stating that such Global Note shall be so exchangeable, or (C) an Event of Default has occurred and is continuing and the Registrar has received a request from DTC. In connection with the exchange of an entire Global Note for Certificated Notes pursuant to this paragraph (c), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and upon Company Order the Trustee shall authenticate and deliver, to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Certificated Notes of authorized denominations. 2.7 Transfer and Exchange. (a) Transfers. Transfers of a Global Note shall be limited to transfers of such Global Note in whole, but not in part, to nominees of DTC or to a successor of DTC or such successor's nominee. (A) When Notes are presented to the Registrar or a co-Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or co-Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction are met; provided that any Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar or co-Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing. To permit registrations of transfers and exchanges and subject to the other terms and conditions of this Article II, the Company will execute and upon Company Order the Trustee will authenticate Notes at the Registrar's or co-Registrar's written request. (B) No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to Article IV or Section 9.5). (C) The Registrar or co-Registrar shall not be required to register the transfer of or exchange of any Note for a period beginning: (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing, or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date. (D) Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent, the Registrar or any co-Registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Company, the Trustee, the Paying Agent, the Registrar or any co-Registrar shall be affected by notice to the contrary. (E) All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange. (b) No Obligation of the Trustee. The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Note, an Agent Member or other Person with respect to the accuracy of the records of DTC or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its Agent Members and any beneficial owners. (c) Retention of Documents. The Registrar and co-Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Article II. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar. 2.8 Mutilated, Destroyed, Lost or Stolen Notes. (a) If a mutilated Note is surrendered to the Registrar or co-Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall execute and upon Company Order the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies any other reasonable requirements of the Trustee and the Company. If required by the Trustee or the Company, such Holder shall furnish an affidavit of loss and indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and any co-Registrar from any loss that any of them may suffer if a Note is replaced, and, in the absence of notice to the Company or the Trustee that such Note has been acquired by a protected purchaser, the Company shall execute and upon Company Order the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously Outstanding. (b) Upon the issuance of any new Note under this Section 2.8, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith. (c) Every new Note issued pursuant to this Section 2.8 in exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall constitute an original additional contractual obligation of the Company and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder. 2.9 Temporary Notes. Until definitive Notes are ready for delivery, the Company may execute and upon Company Order the Trustee will authenticate temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Company will prepare and execute and upon Company Order the Trustee will authenticate definitive Notes. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Company for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company will execute and upon Company Order the Trustee will authenticate and make available for delivery in exchange therefor one or more definitive Notes representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of definitive Notes. 2.10 Cancellation. The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar, co-Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and dispose of cancelled Notes in accordance with its policy of disposal or return to the Company all Notes surrendered for registration of transfer, exchange, payment or cancellation. The Company may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange upon Company Order. 2.11 Defaulted Interest. (a) When any installment of interest becomes Defaulted Interest, such installment shall forthwith cease to be payable to the Holders in whose names the Notes were registered on the Record Date applicable to such installment of interest. Defaulted Interest (including any interest on such Defaulted Interest) shall be paid by the Company, at its election, as provided in Sections 2.11(b) or (c). (b) The Company may elect to make payment of any Defaulted Interest (including any interest on such Defaulted Interest) to the Holders in whose names the Notes are registered at the close of business on a special record date for the payment of such Defaulted Interest (a "Special Record Date"), which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest and interest payable on such Defaulted Interest, if any, proposed to be paid and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest and interest payable on such Defaulted Interest, if any, or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Holders entitled to such Defaulted Interest and interest payable on such Defaulted Interest, if any, as provided in this Section 2.11(b). Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest, and interest payable on such Defaulted Interest, if any, which shall be not more than 15 calendar days and not less than ten calendar days prior to the date of the proposed payment and not less than ten calendar days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and interest payable on such Defaulted Interest, if any, and the Special Record Date therefor to be sent, first-class mail, postage prepaid, to each Holder at such Holder's address as it appears in the registration books of the Registrar, not less than ten calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and interest payable on such Defaulted Interest, if any, and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest and interest payable on such Defaulted Interest, if any, shall be paid to the Holders in whose names the Notes are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to Section 2.11(c). (c) Alternatively, the Company may make payment of any Defaulted Interest (including any interest on such Defaulted Interest) in any other lawful manner not inconsistent with the requirements of the securities exchange, if any, on which the Notes are listed if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Section 2.11(c), such manner of payment shall be deemed practicable by the Trustee. ARTICLE III COVENANTS 3.1 Payment of Notes. (a) The Company shall pay the principal of and interest (including Defaulted Interest) on the Notes in U.S. Legal Tender on the dates and in the manner provided in the Notes and in this Indenture. Prior to 10:00 a.m. New York City time on each Interest Payment Date and the Maturity Date, the Company shall deposit with the Paying Agent in immediately available funds U.S. Legal Tender sufficient to make Cash payments of the principal and interest due on such Interest Payment Date or Maturity Date, as the case may be. If the Company or an Affiliate of the Company is acting as Paying Agent, the Company or such Affiliate shall, prior to 10:00 a.m. New York City time on each Interest Payment Date and the Maturity Date, segregate and hold in trust U.S. Legal Tender sufficient to make Cash payments of principal and interest due on such Interest Payment Date or Maturity Date, as the case may be. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent (other than the Company or an Affiliate of the Company) holds in accordance with this Indenture U.S. Legal Tender designated for and sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture. (b) Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest payments hereunder. 3.2 Maintenance of Office or Agency. (a) The Company shall maintain each office or agency required under Section 2.3. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. (b) The Company may also from time to time designate one or more other offices or agencies (in or outside of The City of New York) where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in The City of New York for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency. 3.3 Corporate Existence. The Company will do or cause to be done all things necessary to preserve and keep in full force and effect (1) its corporate existence and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective or organizational documents (as the same may be amended from time to time) of the Company or any such Restricted Subsidiary; and (2) the material rights (charter and statutory), licenses and franchises of the Company and its Restricted Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, of the Company or any of its Restricted Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not materially adverse to the Holders of the Notes or such action as is otherwise permitted by this Indenture. 3.4 Compliance Certificate. The Company shall deliver to the Trustee within 105 days after the end of each Fiscal Year of the Company an Officers' Certificate that complies with TIA Section 314(a)(4) stating that in the course of the performance by the signers of their duties as Officers of the Company they would normally have knowledge of any Default or Event of Default and whether or not the signers know of any Default or Event of Default that occurred during such period. If they do, the certificate shall describe the Default or Event of Default, its status and what action the Company is taking or proposes to take with respect thereto. The Company also shall comply with any other applicable requirements of TIA Section 314(a)(4). 3.5 Further Instruments and Acts. The Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper or as the Trustee may reasonably request to carry out more effectively the purpose of this Indenture. 3.6 Restricted Payments (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (1) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or any Restricted Subsidiary); (2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company held by a Person other than the Company or a Restricted Subsidiary of the Company; (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value, any Indebtedness that is subordinated by its terms in right of payment to the Notes, except payments of interest or principal at the Stated Maturity thereof; or (4) make any Restricted Investment (all such payments and other actions set forth in these clauses (1) through (4) being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (5) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; (6) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four quarter period, have been permitted to incur at least $1.00 of additional Indebtedness under the Consolidated Coverage Ratio Test; and (7) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (7), (8), (9), (10), (11) (other than payments with respect to Equity Interests of the Company or any of its Restricted Subsidiaries), (12) and (13) of Section 3.6(b)), is less than the sum, without duplication, of: (A) 50% of the aggregate Consolidated Net Income of the Company (or, in the event such Consolidated Net Income shall be a deficit, minus 100% of such deficit) accrued for the period beginning on the Issue Date and ending on the last day of the Company's most recent fiscal quarter for which financial information is available to the Company ending prior to the date of such proposed Restricted Payment, taken as one accounting period, plus (B) 100% of the aggregate net cash proceeds received by the Company since the Issue Date (x) from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or Disqualified Stock or debt or other securities of the Company that have been converted into or exchanged for such Equity Interests (other than (i) Equity Interests (or Disqualified Stock or convertible or exchangeable debt or other securities) sold to a Subsidiary of the Company or any employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness guaranteed by the Company or any of its Subsidiaries, and (ii) Disqualified Stock or convertible or exchangeable debt or other securities that have been converted into or exchanged for Disqualified Stock), and (y) as capital contributions from its shareholders, plus (C) to the extent that any Unrestricted Subsidiary is redesignated as a Restricted Subsidiary after the Issue Date, the fair market value of such Subsidiary, as determined by the Board of Directors, as of the date of such redesignation, plus (D) the sum of (i) the aggregate amount in cash returned to the Company or any of its Restricted Subsidiaries and (ii) the aggregate principal amount of Indebtedness of the Company or any of its Restricted Subsidiaries cancelled, in each case with respect to Restricted Investments made after the Issue Date whether through interest payments, principal payments, dividends, or other distributions or the forgiveness or cancellation of Indebtedness, plus (E) the net cash proceeds received by the Company or any of its Restricted Subsidiaries from the disposition or sale (other than to a Restricted Subsidiary), or liquidation, retirement or redemption of all or any portion of Restricted Investments made after the Issue Date, plus (F) the net reduction in Investments in Unrestricted Subsidiaries resulting from payments of dividends, repayments of the principal of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Company or any of its Restricted Subsidiaries, plus (G) in the event that the Company or any of its Restricted Subsidiaries makes any Investment in a Person that, as a result of or in connection with such Restricted Investment, becomes a Restricted Subsidiary, an amount equal to such portion of the Company's or any of its Restricted Subsidiaries' existing Investments in such Person that was previously treated as a Restricted Payment. (b) The provisions of Section 3.6(a) will not prohibit: (1) the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions of this Indenture; provided, however, that any such dividend will be included in the calculation of the amount of Restricted Payments (without duplication for declaration); (2) the making of any Restricted Investment or the payment on or with respect to or, the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or of any Equity Interests of the Company in exchange for, or out of the net cash proceeds of the substantially concurrent sale of, Equity Interests of the Company (other than (i) Disqualified Stock and (ii) Equity Interests issued or sold to a Restricted Subsidiary of the Company or to any employee stock ownership plan or other trust established by the Company or any of its Subsidiaries for the benefit of its employees to the extent that the purchase by such plan or trust is financed by Indebtedness of such plan or trust owed to the Company or any of its Subsidiaries or Indebtedness guaranteed by the Company or any of its Subsidiaries) or out of the net cash proceeds of substantially concurrent capital contributions made to the Company; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Investment, redemption, repurchase, retirement, defeasance or other acquisition will be excluded from clause (7)(B) of Section 3.6(a); (3) the defeasance (whether legally or as to covenants only), redemption, repurchase or other acquisition of subordinated Indebtedness of the Company or any of its Restricted Subsidiaries or Disqualified Stock of the Company with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (4) the declaration and payment of any dividend by a Restricted Subsidiary of the Company to the holders of such Restricted Subsidiary's Equity Interests on a pro rata basis; (5) the retirement of any shares of Disqualified Stock of the Company by conversion into, or by exchange for, shares of Disqualified Stock of the Company, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of the Company) of other shares of Disqualified Stock of the Company; provided that the Disqualified Stock of the Company that replaces the retired shares of Disqualified Stock of the Company shall not require the direct or indirect payment of any liquidation preference earlier in time than the final Stated Maturity of the retired shares of Disqualified Stock of the Company; (6) payments required to be made or otherwise contemplated pursuant to the Plan of Reorganization; (7) payments required to be made pursuant to the CPIH Reimbursement Agreement, the Corporate Services Reimbursement Agreement or Tax Sharing Agreement; (8) payments in respect of the limited partnership interests in Covanta Onondaga Limited Partnership and Covanta Huntington Limited Partnership pursuant to the limited partnership agreements of such entities as in effect on the Issue Date and as amended, modified or extended on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole; (9) repurchases of Equity Interests deemed to occur upon the exercise of stock options if such Equity Interests represent a portion of the exercise price thereof; (10) payments in satisfaction of earn-out and deferred purchase price obligations pursuant to agreements relating to the acquisition of any Person which, following such acquisition, would be a Restricted Subsidiary of the Company; (11) any Restricted Payments made pursuant to any employee benefit plan, arrangement or perquisite (including plans, arrangements or perquisites for the benefit of directors) or employment agreements or other compensation arrangements, in each case as approved by the Board of Directors in its good faith judgment; (12) the distribution, as a dividend or otherwise, of Equity Interests of, or Indebtedness owed to the Company or a Restricted Subsidiary of the Company by, any Unrestricted Subsidiary of the Company; (13) payments or distributions to dissenting stockholders pursuant to applicable law or pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 5.1; (14) any purchase, redemption, retirement or other acquisition for value of any subordinated Indebtedness pursuant to the provisions of such Indebtedness relating to a change of control or sale of assets; provided that the Company shall have complied with any requirement to make a Change of Control Offer or Asset Sale Offer, as the case may be, in connection with such change of control or sale of assets; and (15) other Restricted Payments in an aggregate amount not to exceed $10.0 million. (c) The amount of all Restricted Payments (other than cash) will be the fair market value on the date of the Restricted Payment of the assets or securities proposed to be transferred or issued by the Company or any Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any assets or securities that are required to be valued by this covenant will be determined, in good faith, by the Board of Directors. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $15.0 million and if the Restricted Payment is to be made to an Affiliate of the Company or to the holders of or in respect of any Equity Interest. Not later than the date of making any Restricted Payment having a fair market value exceeding $15.0 million, the Company will deliver to the Trustee an Officer's Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 3.6 (c) were computed, together with a copy of the fairness opinion or appraisal required by this Indenture. In determining whether any Restricted Payment is permitted by the covenant described above, the Company may in its sole discretion allocate all or any portion of such Restricted Payment among the categories described in the immediately preceding paragraph or among such categories and the types of Restricted Payments described in the first paragraph under the "Restricted Payments" heading above; provided that at the time of such allocation, all such Restricted Payments, or allocated portions thereof, would be permitted under the various provisions of the covenant described above. 3.7 Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: (1) the Company (or such Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; (2) the fair market value is determined by the Board of Directors and evidenced by a resolution of the Board of Directors and, if such fair market value is in excess of $15.0 million, is set forth in an Officer's Certificate delivered to the Trustee; and (3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of Cash or Cash Equivalents. For purposes of this clause (3), each of the following will be deemed to be Cash: (A) any liabilities, as shown on the Company's most recent consolidated balance sheet, of the Company or any of its Restricted Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability; (B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee converted by the Company or such Restricted Subsidiary within 90 days into cash or Cash Equivalents, to the extent of the cash and Cash Equivalents received in that conversion; and (C) any Voting Stock or assets of the kind referred to in clause (2) or (4) of Section 3.7 (b). (b) Within 425 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary may, at its option and to the extent it elects, apply (i) 33% of all such Net Proceeds received after the Issue Date and until the aggregate Net Proceeds received by the Company and all of its Restricted Subsidiaries equal $7.5 million, and (ii) thereafter, 100% of such Net Proceeds: (1) to repay or cash collateralize Bank Indebtedness and, to the extent the Bank Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; (2) to redeem the High Yield Notes in whole or in part; (3) to repay any other Senior Indebtedness in whole or in part; (4) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, a Permitted Business, or to make a Permitted Investment in another Person that is engaged in a Permitted Business; (5) to make capital expenditures that are used or useful in a Permitted Business; (6) to acquire other assets that are used or useful in a Permitted Business; or (7) any combination of the foregoing; provided that the Company and any such Restricted Subsidiary will be deemed to have applied such Net Proceeds in accordance with clause (2) or clause (4) of this Section 3.7(b) if, within 365 days after the date of such Asset Sale, the Company or such Restricted Subsidiary shall have entered into, and not abandoned or rejected, a binding agreement with respect to an acquisition, expenditure or Investment that would result in such application of such Net Proceeds and that acquisition, expenditure or Investment is thereafter completed within 455 days after the date of such Asset Sale. (c) Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. (d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 3.7(b), other than Net Proceeds not required to be applied or invested in the manner specified in Section 3.7(b), will constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will, to the extent permitted under the High Yield Note Indenture and the Intercreditor Agreement, make an Asset Sale Offer to all Holders of Notes and to all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase or redeem the maximum principal amount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal plus accrued and unpaid interest on the Notes to be purchased, to the date fixed for the closing of such Asset Sale Offer in accordance with the procedures set forth in this Indenture, and will be payable in cash. If the date of purchase is on or after an interest record date and on or before the related Interest Payment Date, accrued and unpaid interest, if any, will be paid to the Holder in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender pursuant to the Asset Sale Offer. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by the High Yield Note Indenture. If the aggregate principal of Notes and the amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. (e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 4.8 or this Section 3.7, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 4.8 or this Section 3.7 by virtue of such conflict. (f) Notwithstanding the foregoing, to the extent the Intercreditor Agreement is in effect, any Asset Sale shall be governed by the terms of the Intercreditor Agreement to the extent that the applicable terms of this Indenture are inconsistent therewith. Furthermore, the Company shall not be required to make any Asset Sale Offer to the extent such offer would be prohibited by the terms of any Senior Indebtedness. 3.8 Transactions with Affiliates. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any of its Affiliates (each, an "Affiliate Transaction"), unless: (1) the Affiliate Transaction is on terms that are no less favorable to the Company or such Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person; and (2) the Company delivers to the Trustee: (A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million, a resolution of the Board of Directors set forth in an Officer's Certificate certifying that such Affiliate Transaction complies with this Section 3.8 and that such Affiliate Transaction has been approved by a majority of the members of the Board of Directors having no personal stake in such Affiliate Transaction; and (B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $30.0 million, an opinion as to the fairness to the Company and its Restricted Subsidiaries of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. (b) The following transactions will not be deemed to be Affiliate Transactions and therefore will not be subject to the provisions of Section 3.8(a): (1) any Restricted Payment permitted to be made pursuant to Section 3.6 and any Permitted Investment; (2) payments made pursuant to the CPIH Reimbursement Agreement, the Corporate Services Reimbursement Agreement and the Tax Sharing Agreement; (3) any employment, service or termination agreement entered into in the ordinary course of business; (4) any issuance of Equity Interests (other than Disqualified Stock), or other payments, awards or grants in cash, Equity Interests (other than Disqualified Stock) or otherwise pursuant to, or the funding of, employment arrangements, employee stock options and employee stock ownership plans approved by the Board of Directors; (5) loans or advances to employees of the Company or its Subsidiaries in the ordinary course of business permitted by clause (7) of the definition of Permitted Investments; (6) the payment or provision of reasonable fees, compensation or employee benefit plans, arrangements or perquisites to, and any indemnity provided for the benefit of, directors, officers, consultants or employees of the Company or any Subsidiary in the ordinary course of business; (7) any transaction between or among the Company and its Restricted Subsidiaries or between Restricted Subsidiaries of the Company; (8) transactions with customers, suppliers, contractors, joint venture partners or purchasers or sellers of goods or services, in each case which are in the ordinary course of business (including, without limitation, pursuant to joint venture agreements) and otherwise in compliance with the terms of this Indenture, and which are fair to the Company and its Restricted Subsidiaries, as applicable, in the reasonable determination of the Board of Directors; (9) transactions with the Investor Parties pursuant to the Indemnification Agreement, the Second Lien Letter of Credit Facility and any other agreement in existence on the Issue Date, between the Company, DHC or any Investor Party, as such agreement may thereafter be amended, modified, restated, renewed, extended, refinanced, refunded or replaced, as applicable, on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than those terms in effect on the Issue Date, and any such amendment, modification, restatement, renewal, extension, refinancing, refunding or replacement; (10) transactions with CPIH and its Subsidiaries pursuant to agreements in existence or entered into on the Issue Date, as such agreements may thereafter be amended, modified, restated, renewed, extended, refinanced, refunded or replaced, as applicable, on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the terms of such agreements as in effect on the Issue Date, and any such amendment, modification, restatement, renewal, extension, refinancing, refunding or replacement; (11) transactions pursuant to any other arrangement, contract or agreement in existence on the Issue Date, as such arrangement, contract or agreement may thereafter be amended, modified, restated, renewed, extended, refinanced, refunded or replaced from time to time; provided that any such amendment, modification, restatement, renewal, extension, refinancing, refunding or replacement is on terms not materially less favorable to the Company and its Restricted Subsidiaries, taken as a whole, than the arrangement, contract or agreement in existence on the Issue Date; and (12) sales of Equity Interests, other than Disqualified Stock, of the Company to Affiliates of the Company. 3.9 Offer to Repurchase Upon Change of Control. (a) Subject to the Company's right to redeem the Notes pursuant to Section 4.1, upon the occurrence of a Change of Control, the Company will make an offer (a "Change of Control Offer") to each Holder to repurchase all or any part (in a minimum aggregate principal amount at Stated Maturity of $500 or an integral multiple of $500) of such Holder's Notes at a purchase price in cash equal to 101% of the principal of the Notes repurchased plus accrued and unpaid interest on the Notes repurchased to the date of repurchase (the "Change of Control Payment"). Within 10 days following any Change of Control, unless the Company has sent a redemption notice pursuant to Section 4.3 for all of the Notes, the Company will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and stating: (1) that the Change of Control Offer is being made pursuant to this Section 3.9 and that all Notes tendered will be accepted for payment; (2) the purchase price and the purchase date, which date shall be no earlier than 30 days and no later than 60 days after the date on which such notice is mailed (the "Change of Control Payment Date"); (3) that any Note not tendered will continue to accrue interest; (4) that, unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest after the Change of Control Payment Date; (5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder; the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and (7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $500 in principal amount or an integral multiple thereof. (b) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change in Control. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 4.8 or this Section 3.9, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 4.8, or this Section 3.9 by virtue of such conflict. (c) On the Change of Control Payment Date, the Company shall, to the extent lawful: (1) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer; (2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and (3) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer's Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company. Any Note so accepted for payment shall cease to accrue interest on and after the Change of Control Payment Date. (d) The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a minimum aggregate principal amount of $500 or an integral multiple thereof. If the Change of Control Payment Date is on or after an interest record date and on or before the related Interest Payment Date, accrued and unpaid interest, if any, will be paid to the Holder in whose name a note is registered at the close of business on such record date, and no additional interest will be payable to the holders who tender pursuant to the Change of Control Offer. The Company shall publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. (e) Notwithstanding anything to the contrary in this Section 3.9, the Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 3.9 and purchases all Notes validly tendered and not withdrawn under the Change of Control Offer. 3.10 Designation of Restricted and Unrestricted Subsidiaries. The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary, if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary properly so designated will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of Section 3.6 or Permitted Investments, as determined by the Company. Such a designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the criteria for being an Unrestricted Subsidiary. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would not cause a Default. ARTICLE IV OPTIONAL REDEMPTION OF NOTES 4.1 Optional Redemption. The Company may redeem the Notes, as a whole or from time to time in part, subject to the conditions and at 100% of the outstanding principal amount thereof. 4.2 Election to Redeem. The Company shall evidence its election to redeem any Notes pursuant to Section 4.1 by a Board Resolution. 4.3 Notice of Redemption. (a) The Company shall give or cause the Trustee to give notice of redemption, in the manner provided for in Section 11.2, not less than 45 nor more than 75 days prior to the Redemption Date, to each Holder of Notes to be redeemed. If the Company itself gives the notice, it shall also deliver a copy to the Trustee. (b) If either (i) the Company is not redeeming all Outstanding Notes, or (ii) the Company elects to have the Trustee give notice of redemption, then the Company shall deliver to the Trustee, at least 45 days prior to the Redemption Date (unless the Trustee is satisfied with a shorter period), an Officers' Certificate requesting that the Trustee select the Notes to be redeemed and/or give notice of redemption and setting forth the information required by paragraph (c) of this Section 4.3 (with the exception of the identification of the particular Notes, or portions of the particular Notes, to be redeemed in the case of a partial redemption). If the Company elects to have the Trustee give notice of redemption, the Trustee shall give the notice in the name of the Company and at the Company's expense. (c) All notices of redemption shall state: (A) the Redemption Date, (B) the redemption price and the amount of any accrued interest payable as provided in Section 4.6, (C) whether or not the Company is redeeming all Outstanding Notes, (D) if the Company is not redeeming all Outstanding Notes, the aggregate principal amount of Notes that the Company is redeeming and the aggregate principal amount of Notes that will be Outstanding after the partial redemption, as well as the identification of the particular Notes, or portions of the particular Notes, that the Company is redeeming, (E) if the Company is redeeming only part of a Note, the notice that relates to that Note shall state that on and after the Redemption Date, upon surrender of that Note, the Holder will receive, without charge, a new Note or Notes of authorized denominations for the principal amount of the Note remaining unredeemed, (F) that on the Redemption Date the redemption price and any accrued interest payable to the Redemption Date as provided in Section 4.6 will become due and payable in respect of each Note, or the portion of each Note, to be redeemed, and, unless the Company defaults in making the redemption payment, that interest on each Note, or the portion of each Note, to be redeemed, will cease to accrue on and after the Redemption Date, (G) the place or places where a Holder must surrender the Holder's Notes for payment of the redemption price, and (H) the CUSIP or ISIN number, if any, listed in the notice or printed on the Notes, and that no representation is made as to the accuracy or correctness of such CUSIP or ISIN number. 4.4 Selection of Notes to Be Redeemed in Part. (a)If there is more than one Holder of the Notes and if the Company is not redeeming all Outstanding Notes, the Trustee shall select the Notes to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not then listed on a national securities exchange, by lot. The Trustee shall make the selection from the Outstanding Notes not previously called for redemption. The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount of the Notes to be redeemed. In the event of a partial redemption by lot, the Trustee shall select the particular Notes to be redeemed not less than 30 nor more than 60 days prior to the relevant Redemption Date from the Outstanding Notes not previously called for redemption. The Company may redeem Notes in denominations of $500 only in whole. The Trustee may select for redemption portions (equal to $500 or any integral multiple of $500) of the principal of Notes that have denominations larger than $500. (b) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of that Note which has been or is to be redeemed. 4.5 Deposit of Redemption Price. Prior to 10:00 a.m. New York City time on the relevant Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as Paying Agent, segregate and hold in trust as provided in Section 2.4) an amount of money in immediately available funds sufficient to pay the redemption price of, and accrued interest on, all the Notes that the Company is redeeming on that date. 4.6 Notes Payable on Redemption Date. If the Company, or the Trustee on behalf of the Company, gives notice of redemption in accordance with this Article IV, the Notes, or the portions of Notes, called for redemption, shall, on the Redemption Date, become due and payable at the redemption price specified in the notice (together with accrued interest, if any, to the Redemption Date), and from and after the Redemption Date (unless the Company shall default in the payment of the redemption price and accrued interest) the Notes or the portions of Notes called for redemption shall cease to bear interest. Upon surrender of any Note for redemption in accordance with the notice, the Company shall pay the Notes at the redemption price, together with accrued interest, if any, to the Redemption Date (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date). If the Company shall fail to pay any Note called for redemption upon its surrender for redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes. 4.7 Unredeemed Portions of Partially Redeemed Note. Upon surrender of a Note that is to be redeemed in part, the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of the Note at the expense of the Company, a new Note or Notes, of any authorized denomination as requested by the Holder, in an aggregate principal amount equal to, and in exchange for, the unredeemed portion of the principal of the Note surrendered, provided that each new Note will be in a principal amount of $500 or integral multiple of $500. 4.8 Offer to Purchase by Application of Excess Proceeds. (a) In the event that, pursuant to Section 3.7, the Company is required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it will follow the procedures specified below. (b) Subject to the Intercreditor Agreement and the High Yield Notes Indenture, the Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Company will apply all Excess Proceeds (the "Offer Amount") to the purchase or redemption of Notes and such other pari passu Indebtedness containing provisions similar to this Section 4.8 (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. (c) If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. (d) Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state: (1) that the Asset Sale Offer is being made pursuant to this Section 4.8 and Section 3.7 and the length of time the Asset Sale Offer will remain open; (2) the Offer Amount, the offer price and the Purchase Date; (3) that any Note not tendered or accepted for payment will continue to accrue interest; (4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date; (5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $500 of principal at Stated Maturity only; (6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date; (7) that Holders will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (8) that, if the aggregate purchase or redemption price of Notes and other pari passu Indebtedness surrendered by Holders exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased or redeemed on a pro rata basis based on the principal amount of the Notes and principal of such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $500 of principal at Stated Maturity, or integral multiples thereof, will be purchased); and (9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount at Stated Maturity to that of the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). (e) On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver to the Trustee an Officer's Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.8. The Company, the depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company will authenticate and mail or deliver such new Note to such Holder, in a principal amount at Stated Maturity equal to that of any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date. (f) Other than as specifically provided in this Section 4.8, any purchase pursuant to this Section 4.8 shall be made in accordance with the provisions of Sections 4.3 through 4.7. (g) The Company shall not be required to make any Asset Sale Offer to the extent such offer would be prohibited by the terms of any Senior Indebtedness or the Intercreditor Agreement. ARTICLE V SUCCESSOR 5.1 Merger, Consolidation, or Sale of Assets. (a) The Company shall not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not the Company is the surviving corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless: (1) either: (a) the Company is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (2) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes and this Indenture, pursuant to a supplemental indenture or other agreements reasonably satisfactory to the Trustee; (3) immediately after giving effect to such transaction no Default or Event of Default exists; (4) the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer, conveyance or other disposition has been made shall, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, (i) be permitted to incur at least $1.00 of additional Indebtedness under the Consolidated Coverage Ratio Test or (ii) (A) would have a Consolidated Coverage Ratio greater than the Consolidated Coverage Ratio of the Company immediately prior to such transaction and without taking into account such transaction and any related financing transactions and (B) has received and delivered to the Trustee letters from Moody's and S&P stating that the High Yield Notes (if any are outstanding at that time), after giving effect to such transaction and any related financing transactions, will be rated at least "Ba1" and "BB" by such agencies, respectively; and (5) the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, comply with this Indenture. (b) In addition, the Company shall not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. This Section 5.1 will not prohibit (i) any sale, assignment, transfer, conveyance or other disposition of assets between or among the Company and any Restricted Subsidiary, (ii) any Restricted Subsidiary from consolidating with, merging into or transferring all or part of its assets to the Company, or (iii) the Company from merging with an Affiliate incorporated solely for the purpose of reincorporating the Company in another jurisdiction to realize tax or other benefits. (c) In the event of any transaction (other than a lease) described in and complying with the conditions listed in the immediately preceding paragraph in which the Company is not the surviving Person and the surviving Person is to assume all the obligations of the Company under the Notes and this Indenture pursuant to a supplemental indenture, such surviving Person shall succeed to, and be substituted for, and may exercise every right and power of, the Company, and the Company would be discharged from its obligations under this Indenture and the Notes. 5.2 Successor Corporation Substituted. Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company in a transaction that is subject to, and that complies with the provisions of, Section 5.1, the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the "Company" shall refer instead to the successor corporation and not to the Company), and may exercise every right and power of the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of, and interest and premium, if any, on, the Notes except in the case of a sale of all of the Company's assets in a transaction that is subject to, and that complies with the provisions of, Section 5.1. ARTICLE VI DEFAULTS AND REMEDIES 6.1 Events of Default. (a) Each of the following is an "Event of Default": (A) default in the payment when due of the principal of any Notes, including the failure to make a required payment to purchase Notes tendered pursuant to an optional redemption, except if the Company is prohibited from making such payment pursuant to Section 10.3 and for five Business Days after the relevant prohibition is terminated; (B) default for 30 days or more in the payment when due of interest on any Notes, except if the Company is prohibited from making such payment pursuant to Section 10.3 and for five Business Days after the relevant prohibition is terminated; (C) the failure to perform or comply with any other covenant or agreement contained in the Indenture or in the Notes for 60 days or more after written notice to the Company from the Trustee or the Holders of at least 25% in aggregate principal amount of the Outstanding Notes; (D) a Bankruptcy Event of Default; and (E) default by the Company under any Indebtedness which results in the acceleration of such Indebtedness prior to its Stated Maturity and the principal or accreted amount of Indebtedness at the relevant time aggregates $20 million or more. The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body. (b) The Company shall deliver to the Trustee upon becoming aware of any Default or Event of Default written notice in the form of an Officers' Certificate of any Default or Event of Default, their status and what action the Company proposes to take in respect thereof. 6.2 Acceleration. (a) If an Event of Default (other than an Event of Default specified in Section 6.1(a)(D) above) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of Outstanding Notes may declare the unpaid principal of and accrued and unpaid interest on all the Notes to be immediately due and payable by notice in writing to the Company and the Trustee specifying the Event of Default and that it is a "notice of acceleration." If an Event of Default specified in Section 6.1(a)(D) above occurs with respect to the Company, then the unpaid principal of and accrued and unpaid interest on all the Notes will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. (b) At any time after a declaration of acceleration with respect to the Notes as described in Section 6.2(a), the Holders of a majority in aggregate principal amount of the Outstanding Notes may rescind and cancel such declaration and its consequences: (A) if the rescission would not conflict with any judgment or decree; (B) if all existing Events of Default have been cured or waived, except nonpayment of principal or interest that has become due solely because of the acceleration; and (C) if the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances. No rescission shall affect any subsequent Default or impair any rights relating thereto. 6.3 Other Remedies. (a) If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. (b) The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law. 6.4 Waiver of Past Defaults. The Holders of not less than a majority in principal of the aggregate principal amount of the Outstanding Notes may waive any existing Default or Event of Default under the Indenture, and its consequences, except a default in the payment of the principal of or interest on any Notes. 6.5 Control by Majority. The Holders of a majority in aggregate principal amount of the Outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. Subject to Sections 7.1 and 7.2, however, the Trustee may refuse to follow any direction that conflicts with law or this Indenture unless the Holders have offered to the Trustee reasonable indemnity; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. 6.6 Limitation on Suits. No Holder of any Notes will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless: (a) such Holder gives to the Trustee written notice of a continuing Event of Default; (b) Holders of at least 25% in aggregate principal amount of the then Outstanding Notes make a written request to the Trustee to pursue the remedy; (c) such Holders of the Notes provide to the Trustee satisfactory indemnity; (d) the Trustee does not comply with the request delivered in clause (b) within 60 days; and (e) during such 60 day period the Holders of a majority in aggregate principal amount of the Outstanding Notes do not give the Trustee a written direction which, in the opinion of the Trustee, is inconsistent with the request. 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without limitation, Section 6.6), the right of any Holder to receive payment of principal of or interest on the Notes held by such Holder, on or after the respective due dates, Redemption Dates or repurchase date expressed in this Indenture or the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. 6.8 Collection Suit by Trustee. If an Event of Default specified in Sections 6.1(a)(A) and 6.1(a)(B) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company for the whole amount then due and owing (together with applicable interest on any overdue principal and, to the extent lawful, interest on overdue interest) and the amounts provided for in Section 7.7. 6.9 Trustee May File Proofs of Claim, etc. (a) The Trustee may (irrespective of whether the principal of the Notes is then due): (A) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders under this Indenture and the Notes allowed in any bankruptcy, insolvency, liquidation or other judicial proceedings relative to the Company or its respective creditors or properties; and (B) collect and receive any moneys or other property payable or deliverable in respect of any such claims and distribute them in accordance with this Indenture. Any receiver, trustee, liquidator, sequestrator (or other similar official) in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due to the Trustee pursuant to Section 7.7. (b) Nothing in this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. 6.10 Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order: FIRST: to the Trustee for amounts due under Section 7.7; SECOND: to Holders for amounts due and unpaid on the Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and THIRD: to the Company or to such party as a court of competent jurisdiction shall direct. The Trustee may, upon notice to the Company, fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in principal amount of Outstanding Notes. ARTICLE VII TRUSTEE 7.1 Duties of Trustee. (a) If a Default or an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (b) Except during the continuance of a Default or an Event of Default actually known to the Trustee: (A) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (B) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture. (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (A) this paragraph (c) does not limit the effect of paragraph (b) of this Section 7.1; (B) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and (C) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Sections 6.2, 6.4 or 6.5. (d) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. (e) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. (f) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (g) Every provision of this Indenture that in any way relates to the Trustee is subject to the provisions of this Article VII and to the provisions of the TIA. (h) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company. (i) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses (including reasonable attorneys' fees and expenses) and liabilities that might be incurred by it in compliance with such request or dire 7.2 Rights of Trustee. Subject to Section 7.1: (a) The Trustee may rely on any document reasonably believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrains from acting at the direction of the Company, it may require an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officers' Certificate or Opinion of Counsel. (c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. (d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Trustee's conduct does not constitute willful misconduct or negligence. (e) The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel. (f) If the Trustee shall determine, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney. (g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture. (h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder. (i) The Trustee may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. 7.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any of its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar or co-Registrar may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11. 7.4 Trustee's Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company's use of the proceeds from the Notes or any money paid to the Company or upon the Company's direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or in any other document in connection with the sale of the Notes or pursuant to this Indenture other than the Trustee's certificate of authentication. 7.5 Notice of Defaults. If a Default or Event of Default occurs and is continuing and if the Trustee has actual knowledge thereof, the Trustee shall mail to each Holder as their names and addresses appear on the Holder list described in Section 2.5, notice of the Default or Event of Default within 90 days after the occurrence thereof. Except in the case of a Default or Event of Default in payment of principal of or interest on any Note, the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of the Holders. 7.6 Reports by Trustee to Holders. The Trustee shall comply with TIA ss. 313. The Company agrees to notify promptly the Trustee whenever the Notes become listed on any stock exchange and of any delisting thereof. 7.7 Compensation and Indemnity. (a) The Company shall pay to the Trustee, from time to time, reasonable compensation for its acceptance of this Indenture and services hereunder as the Company and the Trustee shall from time to time agree in writing. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, costs of preparing and reviewing reports, certificates and other documents, costs of preparation and mailing of notices to Holders and reasonable costs of counsel retained by the Trustee in connection with the delivery of an Opinion of Counsel or otherwise, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee's agents, counsel, accountants and experts. (b) The Company shall indemnify the Trustee, and hold it harmless, against any and all loss, liability or expense (including reasonable attorneys' fees and expenses) incurred by it without negligence, willful misconduct or bad faith on its part in connection with the acceptance and administration of this trust and the performance of its duties hereunder, including the costs and expenses of enforcing this Indenture (including this Section 7.7) and of defending itself against any claims (whether asserted by any Holder, the Company or otherwise). The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee's own negligence, willful misconduct or bad faith. (c) To secure the Company's payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. Such lien shall survive the satisfaction and discharge of this Indenture. The Trustee's right to receive payment of any amounts due under this Section 7.7 shall not be subordinate to any other liability or indebtedness of the Company. (d) The Company's payment obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses (including the fees and expenses of its agents and counsel) after the occurrence of a Bankruptcy Event of Default, the expenses are intended to constitute expenses of administration under any Bankruptcy Law and shall be preferred over Holders in a proceeding under any Bankruptcy Law; provided, however, that this shall not affect the Trustee's rights as set forth in this Section 7.7 or Section 6.10. 7.8 Replacement of Trustee. (a) The Trustee may resign at any time by so notifying the Company. The Holders of a majority in principal amount of the Outstanding Notes may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee reasonably acceptable to the Company. The Company shall remove the Trustee if: (A) the Trustee fails to comply with Section 7.10; (B) the Trustee is adjudged bankrupt or insolvent; (C) a receiver or other public officer takes charge of the Trustee or its property; or (D) the Trustee otherwise becomes incapable of acting. (b) If the Trustee resigns or is removed by the Company or by the Holders of a majority in principal amount of the Outstanding Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee. (c) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided that all sums owing to the Trustee hereunder have been paid and subject to the lien provided for in Section 7.7. (d) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the Outstanding Notes may petition, at the Company's expense, any court of competent jurisdiction for the appointment of a successor Trustee. (e) If the Trustee fails to comply with Section 7.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (f) Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Company's obligations under Section 7.7 shall continue for the benefit of the retiring Trustee. 7.9 Successor Trustee by Merger. (a) If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee. (b) In case at the time such successor or successors to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have. 7.10 Eligibility; Disqualification. The Trustee shall at all times satisfy the requirements of TIA Section 310(a). The Trustee shall comply with TIA Section 310(b); provided, however, that there shall be excluded from the operation of TIA Section 310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(1) are met. 7.11 Preferential Collection of Claims Against Company. The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated. ARTICLE VIII DISCHARGE OF INDENTURE 8.1 Satisfaction and Discharge. The Indenture will be discharged and will cease to be of further effect (except as to surviving rights or registration of transfer or exchange of the Notes, as expressly provided for in the Indenture) as to all Outstanding Notes when: (a) either: (A) all the Notes theretofore executed, authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation, or (B) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable, and the Company has irrevocably deposited or caused to be deposited with the Trustee to be held in trust U.S. Legal Tender or U.S. Government Obligations sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of and interest on the Notes to the date of deposit, together with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment; (b) the Company has paid all other sums payable under this Indenture and the Notes by the Company; and (c) the Company has delivered to the Trustee an Officers' Certificate stating that all conditions under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with. ARTICLE IX AMENDMENTS 9.1 Without Consent of Holders. (a) The Company and the Trustee may amend this Indenture or the Notes without notice to or consent of any Holder: (A) to cure any ambiguity, defect or inconsistency; (B) to provide for uncertificated Notes in addition to or in place of certificated Notes; provided, however, that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code; (C) to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power herein conferred upon the Company; (D) to comply with any requirements of the Commission in connection with qualifying this Indenture under the TIA; (E) to add a guarantor for the Notes; or (F) to make any change that does not adversely affect the rights of any Holder in any material respect. (b) After an amendment under this Section 9.1 becomes effective, the Company shall mail to Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 9.1. 9.2 With Consent of Holders. (a) The Company and the Trustee may amend this Indenture or the Notes without notice to any Holder but with the written consent of the Holders of at least a majority in principal amount of the Outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes). However, without the consent of each Holder affected, an amendment may not: (A) reduce the amount of Notes whose Holders must consent to an amendment or waiver (including, without limitation, an amendment or waiver of this Section 9.2(a)); (B) reduce the rate of or change or have the effect of changing the time for payment of interest, including Defaulted Interest, on any Notes; (C) reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption, or reduce the redemption price therefor; (D) make any Notes payable in money other than that stated in the Notes; or (E) make any change in the provisions of this Indenture entitling each Holder to receive payment of principal of and interest on such Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of Outstanding Notes to waive Defaults or Events of Default. (b) It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. (c) After an amendment, supplement or waiver under this Section 9.2 becomes effective, the Company shall mail to Holders a notice briefly describing such amendment, supplement or waiver. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment, supplement or waiver under this Section 9.2. (d) An amendment, supplement or waiver under Section 8.1 and this Section 9.2 may not make any change that adversely affects the rights under Article X of any holder of Senior Indebtedness then outstanding unless the holders of all such Senior Indebtedness (or any Representative thereof authorized to give a consent) consent to such change. 9.3 Compliance with Trust Indenture Act. Every amendment to this Indenture or the Notes shall comply with the TIA as then in effect. 9.4 Revocation and Effect of Consents and Waivers. (a) A consent to an amendment, supplement or waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder's Note, even if notation of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder's Note or portion of the Note if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective. After an amendment, supplement or waiver becomes effective, it shall bind every Holder, except as otherwise provided in this Article IX. An amendment, supplement or waiver shall become effective upon receipt by the Trustee of the requisite number of written consents under Section 9.2. (b) The Company may, but shall not be obligated to, fix a record date, which need not be the date provided in TIA Section 316(c) to the extent it would otherwise be applicable, for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. 9.5 Notation on or Exchange of Notes. If an amendment or supplement changes the terms of a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note will execute and upon Company Order the Trustee will authenticate a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment or supplement. 9.6 Trustee to Sign Amendments and Supplements. The Trustee shall sign any amendment or supplement authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such amendment or supplement the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to Sections 7.1 and 7.2) shall be fully protected in relying upon, such evidence as it deems appropriate, including, without limitation, solely on an Opinion of Counsel stating that such amendment or supplement is authorized or permitted by this Indenture. ARTICLE X SUBORDINATION OF THE NOTES 10.1 Agreement to Subordinate. The Company agrees, and each Holder by accepting a Note agrees, that Obligations under the Indenture and the Notes are subordinated in right of payment, to the extent and in the manner provided in this Article X, to the prior payment in full, in Cash or Cash Equivalents, of all Senior Indebtedness of the Company and that the subordination is for the benefit of the holders of such Senior Indebtedness (and their successors and assigns) and shall be enforceable by them directly against the Holders (and their successors and assigns). Only Senior Indebtedness of the Company shall rank senior to the Notes in accordance with the provisions set forth herein. The Notes shall in all respects rank pari passu with, or be senior to, all other indebtedness of the Company. 10.2 Liquidation, Dissolution, Bankruptcy. Upon any payment or distribution of the assets of the Company to creditors upon a total or partial liquidation or dissolution of the Company, in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, an assignment by the Company for the benefit of its creditors or the marshaling of the assets and liabilities of the Company: (a) holders of Senior Indebtedness of the Company shall be entitled to receive payment in full in Cash or Cash Equivalents of all Obligations due in respect thereof before Holders shall be entitled to receive any payment of principal of or interest on the Notes; and (b) until such Senior Indebtedness is paid in full in Cash or Cash Equivalents, any distribution to which Holders would be entitled but for this Article X shall be made to holders of such Senior Indebtedness as their interests may appear; except that Holders, with the consent of each Holder affected thereby, may receive Permitted Junior Securities. 10.3 Default on Senior Indebtedness of the Company. (a) The Company may not pay the principal of or interest on the Notes or make any deposit pursuant to Section 8.1 and may not repurchase, redeem or otherwise retire any Notes (collectively, "pay the Notes"), other than, with the consent of each Holder affected thereby, payments and other distributions in the form of Permitted Junior Securities if: (A) a payment default on Senior Indebtedness of the Company occurs and is continuing beyond any applicable grace period; or (B) any other default occurs and is continuing on Senior Indebtedness of the Company that permits the holders thereof to accelerate its maturity and the Trustee receives a notice of that default (a "Payment Blockage Notice") from the Company or the holders of such Senior Indebtedness. (b) Payments on the Notes may and shall be resumed: (A) in the case of a payment default, upon the date on which it is cured or waived by holders of Senior Indebtedness; and (B) in case of a Payment Blockage Notice relating to a nonpayment default, the earlier of the date on which it is cured or waived by holders of Senior Indebtedness or 179 days after the date on which such Payment Blockage Notice is received, unless the maturity of the relevant Senior Indebtedness of the Company has been accelerated. (c) No new Payment Blockage Notice may be delivered unless and until 180 days have elapsed since the termination of the prohibition of payments on the Notes pursuant to the immediately prior Payment Blockage Notice. (d) No nonpayment default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice unless that default shall have been cured or waived for a period of not less than 90 days. 10.4 Acceleration of Payment of Notes. If payment of the Notes is accelerated because of an Event of Default, the Company or the Trustee shall promptly notify the holders of the Senior Indebtedness (if any is outstanding) of the Company (or their Representative) of the acceleration. If Senior Indebtedness of the Company is outstanding, the Company may not make payments under the Notes in respect of such acceleration until five Business Days after such notice, subject to Section 10.2 and Section 10.3. 10.5 When Distribution Must Be Paid Over. If a distribution is made to the Trustee or the Holders that because of this Article X should not have been made to them, the Trustee or the Holders who receive the distribution shall hold it in trust for holders of Senior Indebtedness of the Company and pay it over to them as their interests may appear. 10.6 Subrogation. After all Senior Indebtedness of the Company is paid in full in Cash or Cash Equivalents and until the Notes are paid in full in Cash or Cash Equivalents, Holders shall be subrogated to the rights of holders of such Senior Indebtedness to receive distributions applicable to such Senior Indebtedness. A distribution made under this Article X to holders of such Senior Indebtedness which otherwise would have been made to Holders is not, as between the Company and Holders, a payment by the Company on such Senior Indebtedness. 10.7 Relative Rights. This Article X defines the relative rights of Holders and holders of Senior Indebtedness of the Company. Nothing in this Indenture shall: (a) impair, as between the Company and Holders, the obligation of the Company, which is absolute and unconditional, to pay its Obligations in respect of this Indenture and the Notes in accordance with their terms; or (b) prevent the Trustee or any Holder from exercising its available remedies upon a Default, subject to the rights of holders of Senior Indebtedness of the Company to receive distributions otherwise payable to Holders as provided in this Article X. 10.8 Subordination May Not Be Impaired by Company. No right of any holder of Senior Indebtedness of the Company to enforce the subordination of the indebtedness evidenced by the Notes shall be impaired by any act or failure to act by the Company or by its failure to comply with this Indenture. 10.9 Rights of Trustee and Paying Agent. (a) Notwithstanding Section 10.3, the Trustee or Paying Agent may continue to make payments on the Notes and shall not be charged with knowledge of the existence of facts that would prohibit the making of any such payments unless, not less than one Business Day prior to the date of such payment, the Trustee receives notice that payments may not be made under this Article X. The Company, the Registrar or co-Registrar, the Paying Agent, a Representative or a holder of Senior Indebtedness may give the notice; provided, however, that, if the holders of an issue of Senior Indebtedness of the Company have a Representative, only the Representative may give the notice. (b) The Trustee in its individual or any other capacity may hold Senior Indebtedness of the Company with the same rights it would have if it were not Trustee. The Registrar and co-Registrar and the Paying Agent may do the same with like rights. The Trustee shall be entitled to all the rights set forth in this Article X with respect to any Senior Indebtedness of the Company which may at any time be held by it, to the same extent as any other holder of such Senior Indebtedness, and nothing in Article VI shall deprive the Trustee of any of its rights as such holder. Nothing in this Article X shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.7. 10.10 Distribution or Notice to Representative. Whenever a distribution is to be made or a notice given to holders of Senior Indebtedness of the Company, the distribution may be made and the notice given to their Representative (if any). 10.11 Trust Moneys Not Subordinated. Notwithstanding anything contained herein to the contrary, payments from money or the proceeds of U.S. Government Obligations held in trust under Section 7.1 by the Trustee for the payment of principal of and interest on the Notes shall not be subordinated to the prior payment of any Senior Indebtedness or subject to the restrictions set forth in this Article X, and none of the Holders shall be obligated to pay over any such amount to the Company or any holder of Senior Indebtedness of the Company or any other creditor of the Company. 10.12 Trustee Entitled to Rely. Upon any payment or distribution pursuant to this Article X, the Trustee and the Holders shall be entitled to rely (i) upon any order or decree of a court of competent jurisdiction in which any proceedings of the nature referred to in Section 10.2 are pending, (ii) upon a certificate of the liquidating trustee or agent or other Person making such payment or distribution to the Trustee or to the Holders or (iii) upon the Representative for the holders of Senior Indebtedness of the Company for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of such Senior Indebtedness and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article X. In the event that the Trustee determines, in good faith, that evidence is required with respect to the right of any Person as a holder of Senior Indebtedness of the Company to participate in any payment or distribution pursuant to this Article X, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and other facts pertinent to the rights of such Person under this Article X, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. The provisions of Sections 7.1 and 7.2 shall be applicable to all actions or omissions of actions by the Trustee pursuant to this Article X. 10.13 Trustee to Effectuate Subordination. Each Holder by accepting a Note irrevocably authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination between the Holders and the holders of Senior Indebtedness of the Company as provided in this Article X and appoints the Trustee as attorney-in-fact for any and all such purposes, including in the event of any insolvency, bankruptcy or receivership case or proceeding or any dissolution, winding-up, liquidation, reorganization or other similar proceedings relative to the Company (whether voluntary or involuntary and whether in bankruptcy, insolvency or receivership proceedings or otherwise), the timely filing of a claim for the unpaid balance of the Holders in the form required in such proceedings and the causing of such claim to be approved. If the Trustee does not file a proper claim of proof of debt in the form required in such proceedings prior to 30 days before the expiration of the time to file such claims or proofs, then the holders of Senior Indebtedness are hereby authorized and shall have the right (without any duty) to demand, sue for, collect, receive and receipt for the payments and distributions in respect of the Senior Indebtedness, and to file and prove all claims therefor and to take all other actions in the name of the Holders or otherwise, as any such holder of Senior Indebtedness or Representative of the holders of Senior Indebtedness may determine to be necessary or appropriate for the enforcement of the provisions of this Article X. In no event shall any Holder waive, forgive or cancel any claim relating to the Note such Holder may now or hereafter have against the Company. 10.14 Trustee Not Fiduciary for Holders of Senior Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if it shall mistakenly pay over or distribute to Holders or the Company or any other Person, money or assets to which any holders of Senior Indebtedness of the Company shall be entitled by virtue of this Article X or otherwise. If, however, a payment or distribution is made to the Holders or the Trustee or the Company or any other Person that because of this Article X should not have been made to them, those who receive such payment or distribution shall hold it in trust for holders of Senior Indebtedness and pay it over to them as their interests may appear. 10.15 Reliance by Holders of Senior Indebtedness on Subordination Provisions. Each Holder by accepting a Note acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration to each holder of any Senior Indebtedness of the Company, whether such Senior Indebtedness was created or acquired before or after the issuance of the Notes, to acquire and continue to hold, or to continue to hold, such Senior Indebtedness and such holder of such Senior Indebtedness shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Indebtedness. 10.16 Changes in Senior Indebtedness. At any time and from time to time without the consent of or notice to any Holder or the Trustee: (a) Senior Indebtedness may be extended, renewed, modified, waived or terms of Senior Indebtedness may be amended; (b) any property pledged, mortgaged or otherwise securing Senior Indebtedness may be sold, exchanged, released or otherwise dealt with; and (c) any guarantor or any other Person (except the Company) liable in any manner for the Senior Indebtedness may be released or the terms of any guarantee of the Senior Indebtedness may be amended or waived. Holders of Senior Indebtedness may at any time and from time to time without the consent of or notice to any Holder or the Trustee: (a) exercise or refrain from exercising any rights against the Company or any other Person; (b) apply any sums by whomever paid or however realized to Senior Indebtedness; and (c) take any other action which otherwise might be deemed to impair the rights of the holders of Senior Indebtedness. Any and all of such actions may be taken by holders of Senior Indebtedness without incurring any responsibility to any Holder or the Trustee and without impairing or releasing the obligations of any Holder or the trustee to the holders of Senior Indebtedness. ARTICLE XI MISCELLANEOUS 11.1 Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the provision required by the TIA shall control. 11.2 Notices. (a) Any notice or communication shall be in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows: if to the Company: COVANTA ENERGY CORPORATION 40 Lane Road Fairfield, NJ 07007 ATTN: Tim Simpson, Esq. if to the Trustee: U.S. Bank Trust National Association 225 Asylum Street, 23rd Floor Hartford, CT 06013 ATTN: Corporate Trust Services The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. (b) Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the Holder's address as it appears on the registration books of the Registrar and shall be sufficiently given if so mailed within the time prescribed. (c) Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it. 11.3 Communication by Holders with Other Holders. Holders may communicate pursuant to TIA ss. 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA ss. 312(c). 11.4 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take or refrain from taking any action under this Indenture, the Company shall furnish to the Trustee: (a) an Officers' Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all conditions precedent have been complied with. 11.5 Statements Required in Certificate or Opinion. Each certificate or opinion, including each Officers' Certificate with respect to compliance with a covenant or condition provided for in this Indenture shall include: (a) a statement that the individual making such certificate has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate are based; (c) a statement that, in the opinion of such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with. 11.6 Rules by Trustee, Paying Agent and Registrar. The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Registrar and the Paying Agent may make reasonable rules for their functions. 11.7 Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York City. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected. 11.8 Governing Law, etc. (a) THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. (b) The Company hereby: (A) agrees that any suit, action or proceeding against it arising out of or relating to this Indenture or the Notes, as the case may be, may be instituted in any Federal or state court sitting in The City of New York, (B) waives to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, and any claim that any suit, action or proceeding in such a court has been brought in an inconvenient forum, (C) irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding, (D) agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding may be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment, and (E) agrees that service of process by mail to the addressed specified herein shall constitute personal service of such process on it in any such suit, action or proceeding. (c) Nothing in this Section 11.8 shall affect the right of the Trustee or any Holder of the Notes to serve process in any other manner permitted by law. 11.9 No Recourse Against Others. An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company shall not have any liability for any obligations of the Company under the Notes, this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes. 11.10 Successors. All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. 11.11 Duplicate and Counterpart Originals. The parties may sign any number of copies of this Indenture. One signed copy is enough to prove this Indenture. This Indenture may be executed in any number of counterparts, each of which so executed shall be an original, but all of them together represent the same agreement. 11.12 Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 11.13 Table of Contents; Headings. The table of contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof. IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above. COVANTA ENERGY CORPORATION By: ------------------------- Name:Anthony Orlando Title: CEO and President [Corporate Seal] Attest: - ------------------------------------------ U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee By: ------------------------- Name: Title: Attest: - ------------------------------------------ EXHIBIT A FORM OF NOTE ------------ [FOR GLOBAL NOTES: "THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF." "IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR SUCH OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE IN FORM REASONABLY SATISFACTORY TO IT AS PROVIDED FOR IN THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIED WITH THE FOREGOING RESTRICTIONS AS PROVIDED FOR IN THE INDENTURE."] FORM OF FACE OF NOTE No. [___] Principal Amount $[______________] [For Global Notes: as revised by the Schedule of Increases and Decreases in Global Note attached hereto] CUSIP NO. 22281N AB9 ISIN NO. US22281NA B91 Covanta Energy Corporation, a Delaware corporation, promises to pay to [___________], or registered assigns, the principal sum of [__________________] Dollars as revised by the Schedule of Increases and Decreases in Global Note attached hereto, the dates provided for herein. Interest Payment Dates: [_______] and [_______] Record Dates: [_______] and [_______] Additional provisions of this Note are set forth on the other side of this Note. COVANTA ENERGY CORPORATION By: ------------------------- Name:Anthony Orlando Title: CEO and President By: Timothy Simpson, Esq. ------------------------- Name: Vice-President Title: TRUSTEE'S CERTIFICATE OF AUTHENTICATION U.S. Bank, as Trustee, certifies that this is one of the Notes referred to in the Indenture. By: ______________________ Authorized Signatory Date: ___________________ FORM OF REVERSE SIDE OF NOTE 7.5% Subordinated Unsecured Notes due 2012 1. Interest Covanta Energy Corporation, a Delaware corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, the "Company"), promises to pay interest on the principal amount of this Note at the rate per annum shown above. The Company will pay interest semiannually in arrears on each Interest Payment Date of each year commencing September [ ], 2004. Interest on the Notes will accrue from the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from September [ ], 2004. The Company will repay an amount of outstanding principal on this Note equal to the product of $3.9 million multiplied by the ratio of: the principal amount of this Note ---------------------------------------------------------- the principal amount of all Outstanding Notes on September [ ] of each of 2005, 2006, 2007, 2008, 2009 and 2010, to be distributed pro rata to the holders of the Notes. The Company will repay the remaining outstanding principal amount of the Notes, together with accrued and unpaid interest thereon, on March [__], 2012. Any Note issued after the initial distribution date shall be accompanied by (i) the right to receive on the next Interest Payment Date accrued interest from the date of initial distribution of Notes under the Indenture (or, in the case of a Note which is issued after one or more Interest Payment Dates, the most recent Interest Payment Date) to the date of issuance (whether or not such Note is outstanding on the Record Date applicable to such Interest Payment Date) and (ii) in the case of any Note which is issued after one or more Interest Payment Dates, cash equal to the amount of interest which would have been payable on such Notes if it had been outstanding on such Interest Payment Date(s). Notwithstanding clause (i) of the previous sentence, (x) any Note issued in the interval between a Record date and the applicable Interest Payment Date shall be accompanied by a cash payment equal to the amount of interest which would have been payable on such Note on the applicable Interest Payment Date had such Note been outstanding on such Record Date and (y) the Holder of such Note shall not be entitled to receive any interest payment on such Interest Payment Date. To the extent lawful, the Company shall pay interest on overdue principal and on overdue installments of interest at the rate borne by the Notes plus 1.0%. Interest will be computed on the basis of a 360-day year of twelve 30-day months. 2. Method of Payment Prior to 10:00 a.m. New York City time on the date on which any principal of or interest on any Note is due and payable, the Company shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal and/or interest. The Company will pay interest (except Defaulted Interest) to the Persons who are registered Holders of Notes at the close of business on the Record Date preceding the Interest Payment Date even if Notes are canceled, repurchased or redeemed after the Record Date and on or before the relevant Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in U.S. Legal Tender. Payments in respect of Notes represented by a Global Note (including principal and interest) will be made by the transfer of immediately available funds to the accounts specified by DTC. The Company will make all payments in respect of a Certificated Note (including principal and interest) by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least $5,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). 3. Paying Agent and Registrar Initially, U.S. Bank Trust National Association (the "Trustee"), will act as Trustee, Paying Agent and Registrar. The Company may appoint and change any Paying Agent, Registrar or co-Registrar without notice to any Holder. The Company 4. Indenture The Company issued the Notes under an Indenture, dated as of March [__], 2004 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the "Indenture"), between the Company and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of those terms. Each Holder by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as amended or supplemented from time to time. The Notes are general unsecured obligations of the Company subordinated to Senior Indebtedness of the Company as provided in the Indenture. All Notes will be treated as a single class of securities under the Indenture. 5. Redemption The Company may redeem the Notes, at its option, in whole at any time or in part from time to time, at 100% of the outstanding principal amount thereof. In the case of any partial redemption, selection of the Notes for redemption will be made in accordance with Article IV of the Indenture. On and after the redemption date, interest will cease to accrue on Notes or portions thereof called for redemption as long as the Company has deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to the Indenture. 6. Repurchase at Option of Holders. Subject to the Company's right to redeem the Notes pursuant to Section 4.1 of the Indenture, upon the occurrence of a Change of Control, the Company will be required to make an offer (a "Change of Control Offer") to each Holder to repurchase all or any part (in a minimum aggregate principal amount at Stated Maturity of $500 or an integral multiple of $500) of such Holder's Notes at a purchase price in cash equal to 101% of principal amount of the Notes repurchased plus accrued and unpaid interest on the Notes repurchased to the date of repurchase (the "Change of Control Payment"). Within 10 days following any Change of Control, if the Company has not sent a redemption notice pursuant to Section 4.3 of the Indenture for all of the Notes, the Company will mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture. If the Company or a Subsidiary consummates any Asset Sale, and the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will, subject to the Intercreditor Agreement, commence an offer to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an "Asset Sale Offer") pursuant to Section 4.8 of the Indenture to purchase or redeem the maximum principal amount at Stated Maturity of Notes and such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest on the Notes to be purchased to the date fixed for the closing of such Asset Sale Offer in accordance with the procedures set forth in the Indenture, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and principal amount of other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and other pari passu Indebtedness to be purchased or redeemed on a pro rata basis. Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to each of the Holders containing all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. Holders electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date. 7. Subordination This Note is subordinated in right of payment, as set forth in the Indenture, to the prior payment in full in Cash or Cash Equivalents of all existing and future Senior Indebtedness of the Company. This Note in all respects ranks pari passu with, or senior to, all other indebtedness of the Company. By accepting a Note, each Holder agrees to the subordination provisions set forth in the Indenture, authorizes the Trustee to acknowledge such subordination provisions and give them effect and appoints the Trustee as attorney-in-fact for such purpose. 8. Denominations; Transfer; Exchange The Notes are in fully registered form without coupons, and only in denominations of principal amount of $500 and any integral multiple thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange (i) any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) for a period beginning 15 days before the mailing of a notice of Notes to be redeemed and ending on the date of such mailing or (ii) any Notes for a period beginning 15 days before an interest payment date and ending on such interest payment date. 9. Persons Deemed Owners The registered holder of this Note may be treated as the owner of it for all purposes. 10. Unclaimed Money If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment. 11. Amendment, Waiver Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes and (ii) any default (other than with respect to nonpayment or in respect of a provision that cannot be amended or supplemented without the written consent of each Holder affected) or noncompliance with any provision may be waived with the written consent of the Holders of a majority in aggregate principal amount of the then Outstanding Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency, or to comply with Article IV of the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add guarantees with respect to the Notes or to secure the Notes, or to add additional covenants or surrender rights and powers conferred on the Company, or to comply with any request of the Commission in connection with qualifying the Indenture under the TIA, or to make any change that does not adversely affect the rights of any Holder. 12. Defaults and Remedies If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Notes may declare all the Notes to be due and payable immediately. Certain events of bankruptcy or insolvency are Events of Default which will result in the Notes being due and payable immediately upon the occurrence of such Events of Default. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or interest) if it determines that withholding notice is in their interest. 13. Trustee Dealings with the Company Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee. 14. No Recourse Against Others An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes. 15. Authentication This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent acting on its behalf) manually signs the certificate of authentication on the other side of this Note. 16. Abbreviations Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act). 17. CUSIP or ISIN Numbers Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Company has caused CUSIP or ISIN numbers to be printed on the Notes and has directed the Trustee to use CUSIP or ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. 18. Governing Law This Note shall be governed by, and construed in accordance with, the laws of the State of New York. The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture that has in it the text of this Note in larger type. Requests may be made to: Covanta Energy Corporation, [INSERT CONTACT NAME AND ADDRESS] ASSIGNMENT FORM To assign this Note, fill in the form below: I or we assign and transfer this Note to (Print or type assignee's name, address and zip code) (Insert assignee's Social Security or Tax I.D. Number) and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him. Date:____________________ Your Signature:___________________ Signature Guarantee:_________________________________ (Signature must be guaranteed) - -------------------------------------------------------------------------------- Sign exactly as your name appears on the other side of this Note. The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15. [For Global Note: SCHEDULE OF DECREASES IN GLOBAL NOTE The following decreases in this Global Note have been made:
Date of Exchange Amount of decrease Principal Amount of Signature of in Principal Amount this Global Note authorized signatory of this Global Note following such of Trustee or Note decrease Custodian ________________ ___________________ ___________________ ___________________]
OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have this Note purchased by the Company pursuant to Sections 3.9 or 4.8 of the Indenture, check the appropriate box below: [ ] Section 3.9 [ ] Section 4.8 If you want to elect to have only part of the principal amount at Stated Maturity of the Note purchased by the Company pursuant to Section 3.9 or 4.8 of the Indenture, state the principal amount at Stated Maturity you elect to have purchased: $_______________ Date:______________ Your Signature:_________________________________________ (Sign exactly as your name appears on the face of this Note) Tax Identification No.:__________________________________ Signature Guarantee*:____________________________ * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). EX-99.T3F1 171 exhibit_t3f-1.txt Exhibit T3F-1 ------------- CROSS-REFERENCE TABLE Trust Indenture Act Section Indenture Section - ----------- ----------------- 310(a)(1).............................................................7.10 (a)(2)...........................................................7.10 (a)(3)...........................................................N.A. (a)(4)...........................................................N.A. (a)(5).....................................................7.08, 7.10 (b).................................................7.08, 7.10, 13.02 (c)..............................................................N.A. 311(a)................................................................7.11 (b)..............................................................7.11 (c)..............................................................N.A. 312(a)................................................................2.05 (b).............................................................13.03 (c).............................................................13.03 313(a)................................................................7.06 (b)(1)...........................................................N.A. (b)(2)...........................................................7.06 (c)..............................................................7.06 (d)..............................................................7.06 314(a)..........................................................4.03, 4.04 (b).............................................................10.02 (c)(1)....................................................7.02, 13.04 (c)(2)....................................................7.02, 13.05 (c)(3)...........................................................N.A. (d)...............................................10.03, 10.04, 10.05 (e).............................................................13.05 (f)..............................................................N.A. 315(a).............................................................7.01(b) (b)..............................................................7.05 (c)..............................................................7.01 (d).....................................................6.05, 7.01(c) (e)..............................................................6.11 316(a) (last sentence).................................................2.9 (a)(1)(A)........................................................6.05 (a)(1)(B)........................................................6.04 (a)(2)...........................................................N.A. (b)..............................................................6.07 (c)..............................................................9.04 317(a)(1).............................................................6.08 (a)(2)...........................................................6.09 (b)..............................................................2.04 318(a)...............................................................13.01 (b)..............................................................N.A. (c).............................................................13.01 - ------------------- N.A. means not applicable EX-99.T3F2 172 exhibit_t3f-2.txt Exhibit T3F-2 ------------- CROSS-REFERENCE TABLE Trust Indenture Act Section Indenture Section - ----------- ----------------- 310(a).................................................. 7.10 (b).................................................. 7.10 (b)(1)............................................... 7.10 311(a).................................................. 7.11 (b).................................................. 7.11 312(b).................................................. 11.3 (c).................................................. 11.3 313 7.6 314(a)(4)............................................... 3.4 316(c).................................................. 9.4 EX-99.T3G 173 exhibit_t3g.txt =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------------- FORM T-1 Statement of Eligibility Under The Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) ------------------------------------------------------- U.S. BANK NATIONAL ASSOCIATION (Exact name of Trustee as specified in its charter) 31-0841368 I.R.S. Employer Identification No. - -------------------------------------------------------------------------------- 800 Nicollet Mall Minneapolis, Minnesota 55402 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) - -------------------------------------------------------------------------------- Mark A. Forgetta U.S. Bank National Association 225 Asylum Street, 23rd Floor Hartford, CT 06103 (860) 241-6837 (Name, address and telephone number of agent for service) Covanta Energy Corporation (Issuer with respect to the Securities) - -------------------------------------------------------------------------------- New Jersey 13-5549268 - -------------------------------------------------------------------------------- (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation or organization) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 40 Lane Road 07004 Fairfield, NJ - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) - -------------------------------------------------------------------------------- Debt Securities 8.25% Senior Secured Notes due 2011 7.5% Subordinated Unsecured Notes due 2012 ------------------------------------------------------------------------------ FORM T-1 -------- Item 1. GENERAL INFORMATION. Furnish the following information as to the Trustee. a) Name and address of each examining or supervising authority to which it is subject. Comptroller of the Currency Washington, D.C. b) Whether it is authorized to exercise corporate trust powers. Yes Item 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. None Items 3-15 Items 3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. Item 16. LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. 1. A copy of the Articles of Association of the Trustee.* 2. A copy of the certificate of authority of the Trustee to commence business.* 3. A copy of the certificate of authority of the Trustee to exercise corporate trust powers.* 4. A copy of the existing bylaws of the Trustee.* 5. A copy of each Indenture referred to in Item 4. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. 7. Report of Condition of the Trustee as of September 30, 2003, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. * Incorporated by reference to Registration Number 333-67188. NOTE The answers to this statement insofar as such answers relate to what persons have been underwriters for any securities of the obligors within three years prior to the date of filing this statement, or what persons are owners of 10% or more of the voting securities of the obligors, or affiliates, are based upon information furnished to the Trustee by the obligors. While the Trustee has no reason to doubt the accuracy of any such information, it cannot accept any responsibility therefor. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Hartford, State of Connecticut on the 5th day of February, 2004. U.S. BANK NATIONAL ASSOCIATION By: /s/ Mark A. Forgetta -------------------------------- Mark A. Forgetta Vice President By: /s/ Kathy A. Larimore -------------------------------- Kathy A. Larimore Vice President Exhibit 6 --------- CONSENT In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Dated: February 5, 2004 U.S. BANK NATIONAL ASSOCIATION By: /s/ Mark A. Forgetta ------------------------------- Mark A. Forgetta Vice President By: /s/ Kathy A. Larimore --------------------------- Kathy A. Larimore Vice President Exhibit 7 --------- U.S. Bank National Association Statement of Financial Condition As of 9/30/2003 ($000's) 9/30/2003 -------------- Assets Cash and Due From Depository Institutions $9,363,408 Federal Reserve Stock 0 Securities 34,719,100 Federal Funds 2,322,794 Loans & Lease Financing Receivables 118,943,010 Fixed Assets 1,915,381 Intangible Assets 9,648,952 Other Assets 9,551,844 -------------- Total Assets $186,464,489 Liabilities Deposits $122,910,311 Fed Funds 6,285,092 Treasury Demand Notes 3,226,368 Trading Liabilities 246,528 Other Borrowed Money 21,879,472 Acceptances 145,666 Subordinated Notes and Debentures 6,148,678 Other Liabilities 5,383,119 -------------- Total Liabilities $166,225,234 Equity Minority Interest in Subsidiaries $1,003,166 Common and Preferred Stock 18,200 Surplus 11,676,398 Undivided Profits 7,541,491 -------------- Total Equity Capital $20,239,255 Total Liabilities and Equity Capital $186,464,489 To the best of the undersigned's determination, as of the date hereof, the above financial information is true and correct. U.S. Bank National Association By: /s/ Mark A. Forgetta ------------------------------- Vice President Date: February 5, 2004 EX-99.T3A11 174 exhibit_t3a-11.txt Exhibit T3A-11 Delaware The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA ENERGY RESOURCE CORP." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE ELEVENTH DAY OF JANUARY, A.D. 1983, AT 11:30 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "BLOUNT ENERGY RESOURCE CORP." TO "OGDEN ENERGY RESOURCE CORP.", FILED THE TWENTY-EIGHTH DAY OF MAY, A.D. 1991, AT 12 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN ENERGY RESOURCE CORP." TO "COVANTA ENERGY RESOURCE CORP.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. [Seal] /s/ Harriet Smith Windsor Harriet Smith Windsor, Secretary of State 0952230-8100H AUTHENTICATION: 2949950 040132978 DATE: 02-24-04 CERTIFICATE OF INCORPORATION OF BLOUNT ENERGY RESOURCE CORP. 1. The name of the corporation is: BLOUNT ENERGY RESOURCE CORP. 2. The address of its registered office in the State of Delaware is 100 West Tenth Street in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of Common stock which the corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Thousand Dollars ($1,000.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by ballot. 6. The name and mailing address of the incorporator is: L. M. Custis 100 West Tenth Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 11th day of January, 1983. /s/ L. M. Custis ---------------------- L. M. Custis CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF BLOUNT ENERGY RESOURCE CORP. Blount Energy Resource Corp. (the "Corporation"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: 1. That pursuant to written consents of the Board of Directors and the sole stockholder of the Corporation, resolutions were duly adopted amending the Certificate of Incorporation of the Corporation as follows: RESOLVED, that Article 1 of the Certificate of Incorporation is amended to read as follows: "1. The name of the corporation is: Ogden Energy Resource Corp." 2. That the foregoing amendment to the Certificate of Incorporation was duly adopted in accordance with Section 242 of the Delaware General Corporation Law. 3. That the capital of the Corporation shall not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Blount Energy Resource Corp. has caused this Certificate to be signed by its Executive Vice President and Secretary this _24th_ day of _May_ 1991. /s/ William C. Mack ------------------- William C. Mack Executive Vice President and Secretary Attest: /s/ Patricia Collins - -------------------- Patricia M. Collins Assistant Secretary CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN ENERGY RESOURCE CORP. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hill Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on ____, 19__ /s/ Jeff Horowitz ----------------- Authorized Officer CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN ENERGY RESOURCE CORP. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN ENERGY RESOURCE CORP. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA ENERGY RESOURCE CORP. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins -------------------- Name: Patricia Collins Title: Asst. Secretary EX-99.T3A37 175 exhibit_t3a-37.txt Exhibit T3A-37 STATE OF CALIFORNIA SECRETARY OF STATE I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 22 page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this day of Feb 26, 2004 /s/ Kevin Shelley Secretary of State ARTICLES OF INCORPORATION OF AMSTOCK II CORPORATION KNOW ALL MEN BY THESE PRESENTS: That we, the undersigned, have this day voluntarily associated ourselves together for the purpose of forming a corporation under the laws of the State of California, and we hereby certify that: One: The name of this corporation is: AMSTOCK II CORPORATION Two: The purposes for which this corporation is formed are: (a) The specific business in which the corporation is primarily to engage is holding share of consumer finance companies. (b) To manufacture, fabricate, assemble, to take, purchase and otherwise acquire, own, hold, use, sell, assign, transfer, exchange, lease and otherwise dispose of, and to invest, trade, deal in and deal with goods, wares and merchandise and supplies and all other personal property of every class and description. (c) To purchase, acquire, own, hold, use, lease (either as lessor or lessee), grant, sell, exchange, subdivide, mortgage, convey in trust, manage, improve, construct, operate and generally deal in any and all real estate, improved or unimproved, stores, office buildings, dwelling houses, apartment houses, hotels, manufacturing plants and other buildings, and any and all other property of every kind or description, real or personal and mixed, and wheresoever situated, either in California, other states of the United States, the District of Columbia, territories and colonies of the United States or foreign countries. (d) To acquire, by purchase or otherwise, the goodwill, business, property rights, franchises and assets of every kind, with or without undertaking, either wholly or in part, the liabilities of any person, firm, association or corporation; and to acquire any property or business as a going concern or otherwise (i) by purchase of the assets thereof wholly or in part, (ii) by acquisition of the shares or any part thereof, or (iii) in any other manner, and to pay for the same in cash or in shares or bonds or other evidences of indebtedness of this corporation, or otherwise; to hold, maintain and operate, or in any manner dispose of, the whole or any part of the goodwill, business, rights and property so acquired, and to conduct in any lawful manner the whole or any part of any business so acquired; and to exercise all the powers necessary or convenient in and about the management of such business. (e) To take, purchase and otherwise acquire, own, hold, use, sell, assign, transfer, exchange, lease, mortgage, convey in trust, pledge, hypothecate, grant licenses in respect of and otherwise dispose of letters patent of the United States or any foreign country, patent rights, licenses and privileges, inventions, improvements and processes, copyrights, trademarks and trade names, and governmental, state, territorial, county and municipal grants and concessions of every character which this corporation may deem advantageous in the prosecution of its business or in the maintenance, operation, development or extension of its properties. (f) To enter into, make, perform and carry out contracts of every kind for any lawful purpose without limit as to amount, with any person, firm, association or corporation, municipality, county, parish, state, territory, government or other municipal or governmental subdivision. (g) To become a partner (either general or limited, or both) and to enter into agreements of partnership, joint venture, or other arrangements for sharing profits and otherwise participating in any enterprise, with one or more other persons or corporations, for the purpose of carrying on any business whatsoever which this corporation may deem proper or convenient in connection with any of the purposes herein set forth or otherwise, or which may be calculated, directly or indirectly, to promote the interests of this corporation or to enhance the value of its property or business. (h) From time to time to apply for, purchase, acquire by assignment, transfer or otherwise, exercise, carry out and enjoy any benefit, right, privilege, prerogative or power conferred by, acquired under or granted by any statute, ordinance, order, license, power, authority, franchise, commission, right or privilege which any government or authority or governmental agency or corporation, or other public body, may be empowered to enact, make or grant; to pay for, aid in, and contribute toward carrying the same into effect, and to appropriate any of this corporation's shares, bonds and/or assets to defray the costs, charges and expenses thereof. (i) To subscribe, or cause to be subscribed for, and to take, purchase and otherwise acquire, own, hold, use, sell, assign, transfer, exchange, distribute and otherwise dispose of, the whole or any part of the shares of the capital stock, bonds, coupons, mortgages, deeds of trust, debentures, securities, obligations, evidences of indebtedness, notes, goodwill, rights, assets and property of any and every kind, or any part thereof, of any other corporations, association or associations, firm or firms, or person or persons, together with shares, rights, units of interest in, or in respect of, any trust estate now or hereafter existing, and whether created by the laws of the State of California or of any other state, territory or country; and to operate, manage and control such properties, or any of them, either in the name of such other corporation or corporations or in the name of this corporation, and while the owner of any of said shares of capital stock, to exercise all the rights, powers and privi1eges of ownership of every kind and description, including the right to vote thereon, with power to designate some person or persons for that purpose from time to time, and to the same extent as natural persons might or could do. (j) To promote, or to aid in any manner financially or otherwise, any person, firm, corporation or association of which any shares of stock, bonds, notes, debentures or other securities or evidences of indebtedness are held, directly or indirectly, by this corporation; and for this purpose to guarantee the contracts, dividends, shares, bonds, debentures, notes and other obligations of such other persons, firms, corporations or associations; and to do any other acts or things designed to protect, preserve, improve or enhance the value of such shares, bonds, notes, debentures or other securities or evidences of indebtedness. (k) To borrow and lend money, but nothing herein contained shall be construed as authorizing the business of banking, or as including the business purposes of a commercial bank, savings bank or trust company. (1) To issue bonds, notes, debentures or other obligations of this corporation from time to time for any of the objects or purposes of this corporation, and to secure the same by mortgage, deed of trust, pledge or otherwise, or to issue the same unsecured; to purchase or otherwise acquire its own bonds, debentures or other evidences of its indebtedness or obligations; to purchase, hold, sell and transfer the shares of its own capital stock to the extent and in the manner provided by the laws of the State of California as the same are now in force, or may be hereafter amended. (m) To purchase, acquire, take, hold, own, use and enjoy, and to sell, lease, transfer, pledge, mortgage, convey, grant, assign or otherwise dispose of and, generally, to invest, trade, deal in and with oil royalties, mineral rights of all kinds, mineral bearing lands and hydrocarbon products of all kinds, oil, gas and mineral leases, and all rights and interests therein and, in general, products of the earth and deposits, both subsoil and surface, of every nature and description. (n) To carry on any business whatsoever, either as principal or as agent, or both, or as a partnership, which this corporation may deem proper or convenient in connection with any of the foregoing purposes or otherwise, or which may be calculated, directly or indirectly, to promote the interests of this corporation or to enhance the value of its property or business; to conduct its business in this state and other states; in the District of Columbia, in the territories and colonies of the United States, and in foreign countries. (o) To have and to exercise all the powers conferred by the laws of California upon corporations formed under the laws pursuant to and under which this corporation is formed, as such laws are now in effect or may at any time hereafter be amended. The foregoing statement of purposes shall be construed as a statement of both purposes and powers, and the purposes and powers stated in each clause shall, except where otherwise expressed, be in nowise limited or restricted by reference to or inference from the terms or provisions of any other clause, but shall be regarded as independent purposes and powers. Three: The county in the State of California where the principal office for the transaction of the business of this corporation is to be located is Los Angeles County. Four: This corporation is authorized to issue only one class of shares of stock. The total number of said shares shall be 1,000. All shares of stock are to be without par value. Five: (a) The number of directors shall be not less than five (5) nor more than eight (8), the exact number of which shall be fixed by a bylaw duly adopted by the shareholders or by the Board of Directors. (b) The names and addresses of those who are appointed to act as the first directors of this corporation are: Name Address ---- ------- Ralph C. Wintrode 634 South Spring Street Los Angeles, California Nancy Wagner 634 South Spring Street Los Angeles, California Charles K. Marquis 634 South Spring Street Los Angeles, California Wilford D. Godbold 634 South Spring Street Los Angeles, California Charles D. Axelrod 634 South Spring Street Los Angeles, California IN WITNESS WHEREOF, for the purpose of forming this corporation under the laws of the State of California, the undersigned, constituting the incorporators of this corporation, including the persons named hereinabove as the first directors of this corporation, have executed these Articles of Incorporation this 28th day of October, 1969. /s/ Ralph C. Wintrode Ralph C. Wintrode /s/ Nancy Wagner Nancy Wagner /s/ Charles K. Marquis Charles K. Marquis /s/ Wilford D. Godbold Wilford D. Godbold /s/ Charles D. Axelrod Charles D. Axelrod STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) On this 28th day of October, 1969, before me, the undersigned Notary Public in and for said State, personally appeared Ralph C. Wintrode, Nancy Wagner, Charles K. Marquis, Wilford D. Godbold and Charles D. Axelrod, known to me to be the persons whose names are subscribed to the foregoing Articles of Incorporation, and acknowledged to me that they executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. /s/ Sandra L. Davis Sandra L. Davis (NOTARIAL SEAL) CERTIFICATE OF OFFICERS OF AMSTOCK II CORPORATION We, the undersigned President and Secretary, and each of us, hereby do certify that we are, and at all times herein mentioned have been respectively the President and Secretary of Amstock II Corporation, a California corporation; and hereby do further certify and state: That on the 17th day of November, 1969, at the hour of 10:00 o'clock A.M. at 745 Fort Street, Honolulu, Hawaii, there was duly held a special meeting of the Board of Directors of Amstock II Corporation. That at said meeting the following resolutions approving the terms and conditions of the agreement of merger with Financial Development Corporation, a California corporation, were adopted by the Board of Directors of Amstock II Corporation: "WHEREAS, there has been presented to and discussed at this meeting of the Board of Directors of Amstock II Corporation, a California corporation, a proposed agreement providing for the merger of Financial Development Corporation, a California corporation, with and into this corporation, a true copy of the form of which the secretary hereby is directed to insert in the minute book of this corporation immediate1y following the minutes of this meeting; and "WHEREAS, it is deemed to be in the interests of this corporation and its shareholders that this corporation enter into the said merger with Financial Development Corporation; "NOW, THEREFORE, BE IT RESOLVED that the merger of Financial Development Corporation with and into Amstock II Corporation as set forth in said proposed agreement, and the terms and conditions of the proposed agreement and the mode of carrying them into effect, as well as the manner and basis of converting the shares of the constituent corporations into the shares of the surviving corporation as therein provided, be and they hereby are approved; and "BE IT FURTHER RESOLVED that the president or any vice president and the secretary or any assistant secretary of this corporation be, and they hereby are, authorized and directed to execute all documents and to take such action as may be deemed to be necessary and advisable to carry out and accomplish the purposes of these resolutions." The authorized number of directors is six; six directors voted affirmatively for said resolutions. That on the 24th day of November, 1969, at the hour of 10:00 o'clock A.M. at 745 Fort Street, Honolulu, Hawaii, there was duly held a special meeting of the shareholder of said corporation, and that at said meeting the terms and conditions of the agreement were approved by the vote of 1,000 shares of capital stock without par value, constituting the vote of not less than two-thirds of the issued and outstanding shares of each class, regardless of limitation or restriction on the voting power thereof. That the total number of outstanding shares of capital stock entitled to vote at said special meeting is 1,000 shares of capital stock without par value. That notice of the time, place and purpose of said special meeting of the shareholder as waived pursuant to California Corporations Code Section 2209. That the name of the surviving corporation is Amstock II Corporation. That the Agreement for Merger Between Financial Development Corporation and Amstock II Corporation merging Financial Development Corporation with and into Amstock II Corporation filed with the Secretary of State concurrently with this certificate, pursuant to Section 4113 of the California Corporations Code is the agreement hereinabove referred to and sets forth the terms and conditions approved by said resolution of directors and vote of shareholders. IN WITNESS WHEREOF, the undersigned have executed this certificate on the ____ day of December, 1969. /s/ Paul R. Cassidy ------------------------------------ President of Amstock II Corporation /s/ J.E. Ednie ------------------------------------ Secretary of Amstock II Corporation STATE OF HAWAII ) ) ss: CITY AND COUNTY OF HONOLULU ) PAUL R. CASSIDY and J. E. EDNIE, the President and Secretary, respectively, of AMSTOCK II CORPORATION, California corporation, being first duly sworn, on oath depose and say: that they are the persons who signed the foregoing instrument; that they have read said instrument, know the contents thereof, and that the same is true. /s/ Paul R. Cassidy ------------------------------------ Paul R. Cassidy /s/ J.E. Ednie ------------------------------------ J. E. Ednie Subscribed and sworn to before me this 12th day of December, 1969. /s/ Marie C. Harada Notary Public, First Judicial Circuit, State of Hawaii My Commission expires: __________ AGREEMENT OF MERGER THIS AGREEMENT OF MERGER dated November 14, 1969, between FINANCIAL DEVELOPMENT CORPORATION, hereinafter sometimes called "Financial", and AMSTOCK II CORPORATION, hereinafter sometimes called "Amstock", W I T N E S S E T H: WHEREAS, Financial and Amstock (both of which are herein sometimes called the Constituent Corporations) are corporations duly organized and existing under the laws of the State of California with their principal offices in the City and County of Los Angeles, State of California; and WHEREAS, Amstock is a wholly owned subsidiary of Amfac, Inc., a corporation duly organized and existing under the laws of the State of Hawaii; and WHEREAS, the Board of Directors of the Constituent Corporations deem it desirable and in the best interests of the corporations and their shareholders that Financial be merged into Amstock; NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants and subject to the conditions herein set forth, the Constituent Corporations agree as follows: 1. The Constituent Corporations shall be merged into a single corporation by Financial merging into and with Amstock, the Surviving Corporation, which shall survive the merger, pursuant to the Corporations Code of the State of California. Upon such merger, the separate corporate existence of Financial shall cease, and the Surviving Corporation shall become the owner, without other transfer, of all the rights and property of the Constituent Corporations and shall become subject to all the debts and liabilities of the Constituent Corporations in the same manner as if the Surviving Corporation had itself incurred them. 2. The name of the Surviving Corporation shall, by amendment of its Articles of Incorporation as hereinafter provided, be Financial Development Corporation. 3. The Articles of Incorporation of the Surviving Corporation (Amstock) shall upon the effective date of merger be amended as follows: Article One of the Articles of Incorporation is hereby amended to read as follows: One: The name of this corporation is Financial Development Corporation 4. From and after the effective date of the merger and until thereafter amended as permitted by law, the Articles of Incorporation as amended above and the By-Laws of Amstock as in force on the effective date of the merger shall be and become the Articles of Incorporation and By-Laws of the Surviving Corporation. 5. The names and addresses of the persons who shall be the directors of the Surviving Corporation and who shall serve as directors of the Surviving Corporation until their successors, elected are as follows: Gilbert E. Cox E. Lawrence Gary 745 Fort Street 745 Fort Street Honolulu, Hawaii Honolulu, Hawaii Michael B. Holland J. E. Ednie 1300 West Olympic Boulevard 745 Fort Street Los Angeles, California Honolulu, Hawaii Fred Lane Paul R. Cassidy 1300 West Olympic Boulevard 745 Fort Street Los Angeles, California Honolulu, Hawaii Howard Hamamoto 745 Fort Street Honolulu, Hawaii 6. The manner and basis of converting shares of the Constituent Corporations into shares of the Surviving Corporation and/or distributing cash anti securities in lieu of shares to the shareholders of the Constituent Corporations shall be as follows: A. Each share of capital stock of Amstock issued and outstanding on the effective date of the merger shall continue to be one (1) share of such stock unaffected by the merger. B. Each share of Financial shall be delivered to the Surviving Corporation for cancellation and shall be cancelled. C. There shall be distributed with respect to and in complete cancellation of each share of Financial common stock issued and outstanding immediately prior to the merger, in lieu of shares of the Surviving Corporation, one share of Amfac, Inc. Series "B" Cumulative Convertible Preferred Stock. 7. This Agreement of Merger shall be submitted to the shareholders of the Constituent Corporations for their approval in the manner provided by the applicable laws of the State of California at a meeting to be held on or before December 16, 1969, or at such other time as the Boards of Directors of the Constituent Corporations shall agree. After approval by the vote of the holders of not less than two thirds of the issued and outstanding shares of each class of stock of each corporation, this Agreement of Merger shall be filed as required by the laws of the State of California, the merger being effective when this Agreement of Merger and certificates of each corporation are filed in the Office of the Secretary of State of the State of California. This Agreement of Merger may be executed in any number of counterparts, and all such counterparts and copies shall be and constitute an original instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement of Merger to be executed in their respective corporate names by their respective officers thereunto duly authorized and have caused their respective corporate seals to be impressed hereon on the day and year first above written. FINANCIAL DEVELOPMENT CORPORATION By: /s/ ------------------------------------- By: /s/ ------------------------------------- AMSTOCK II CORPORATION By: /s/ Paul R. Cassidy By: /s/ J.E. Ednie STATE OF CALIFORNIA ) ) ss: COUNTY OF LOS ANGELES ) On this 17 day of December, 1969, before me, Sandra L. Davis, a notary public in and for said county and state, residing therein duly commissioned and sworn, personally appeared Michael B. Holland and Fred J. Lane, respectively, known to me to be the President and Assistant Secretary, respectively, of FINANCIAL DEVELOPMENT CORPORATION, one of the corporations that executed the within instrument, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal at my office in the county and state aforesaid the day and year in this certificate first above written. /s/ Sandra L. Davis - -------------------------------------------------------------------------------- Notary Public in and for the County of Los Angeles, State of California My commission expires: STATE OF HAWAII ) ) ss: CITY AND COUNTY OF HONOLULU ) On this 12th day of December, 1969, before me, Maria C. Harada, a notary public in and for said city and county and state, residing therein duly commissioned and sworn, personally appeared Paul R. Cassidy and J. E. Ednie, respectively, of AMSTOCK II CORPORATION, one of the corporations that executed the within instrument, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal at my office in the county and state aforesaid the day and year in this certificate first above written. /s/ Marie C. Harada ---------------------------------------------------- Notary Public in and for the City and County of Honolulu, State of Hawaii, First Judicial Circuit My commission expires: DESIGNATION BY CALIFORNIA CORPORATION OF AGENT FOR THE SERVICE OF PROCESS (For filing with the Secretary of State of the State of California pursuant to Section 3301, Corporation Code) ---------------- FINANCIAL DEVELOPMENT CORPORATION,, a corporation organized under the laws of the State of California, designates an agent for service of process as follows: (Use the following paragraph 1 if the process agent is a natural person. See NOTES on the reverse of this form.) 1. ___________________________________________________________________________ a natural person residing in the State of California, whose complete ___ business ___ residence address is ____________________________________________________________________,. is designated as its agent for the purpose of service of process. (Use the following paragraph 2 if the process agent is a corporation. Sec NOTES on the reverse of this form.) 2. CT CORPORATION SYSTEM, a corporation organized and existing under the laws of DELAWARE, is designated as its agent for the purpose of service of process. The name of the city, town or village wherein said corporate agent has an office, as set forth in the certificate filed by said corporate agent pursuant to Section 3301.5 or 3301.6 (if a domestic corporation) or pursuant to Section 6403.5 or 6403.6 (if a foreign corporation), California Corporations Code, at which the undersigned corporation may be served is LOS ANGELES, CALIFORNIA - -------------------------------------------------------------------------------- (State only name of city, town or village - no street address) FINANCIAL DEVELOPMENT CORPORATION (Name of Corporation) By: /s/ Daniel H. Curry ----------------------- Secretary (Title) CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF FINANCIAL DEVELOPMENT CORPORATION We, MICHAEL B. HOLLAND, President and THEODORE P. VALMASSEI, Assistant Secretary, do hereby certify: 1. That we are the President and Assistant Secretary, respectively, of Financial Development Corporation. 2. That the Articles of Incorporation of said corporation were filed October 31, 1969 with the Secretary of State of the State of California. 3. That Article III Section 3.13 of the By-Laws of said corporation authorizes the directors to adopt resolutions by unanimous written consent without a meeting. Accordingly, by unanimous written consent without a meeting, the directors have adopted the following resolutions amending the Articles of Incorporation of said corporation. ONE: "RESOLVED, that Article `ONE' of the Articles of Incorporation which now reads: "ONE: The name of the corporation is: FINANCIAL DEVELOPMENT CORPORATION." is hereby stricken and the following substituted therefor: "ONE: The name of the corporation is: AMFAC CREDIT CORPORATION" RESOLVED FURTHER that the title of the Articles of Incorporation is amended to strike the name "FINANCIAL DEVELOPMENT CORPORATION" and substitute therefor the new name of this corporation, "AMFAC CREDIT CORPORATION." 4. That the number of shares which consented to the adoption of said resolution is 1,000 and the total number of shares entitled to consent to said amendment is 1,000. 5. That the wording of the Amended Articles, as set forth in the Shareholder's Resolution, is the same as that set forth in the Director's Resolution in paragraph 3 above. Executed at Los Angeles, California on October 25, 1972. /s/ Michael B. Holland ------------------------------------- Michael B. Holland, President /s/ Theodore P. Valmassei ------------------------------------- Theodore P. Valmassei, Assistant Secretary AFFIDAV1T STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) The undersigned, being first duly sworn, depose and say, each for himself: That they are and at all times mentioned in the foregoing Certificate of Amendment were, the President and Assistant Secretary of Financial Development Corporation, a California corporation; That each of the undersigned has read the foregoing Certificate of Amendment; That the statements therein set forth are true of his own knowledge and that the signature thereto purporting to be his signature is genuine. /s/Michael B. Holland ------------------------------- Michael B. Holland, President /s/ Theordore P. Valmassei ------------------------------- Theodore P. Valmassei, Assistant Secretary Subscribed and Sworn to before me this 17 day of November, 1972. /s/ Joe Alexander Notary Public for the State of California CERTIFICATE OF OWNERSHIP FOR SHORT-FORM MERGER CERTIFICATE OF OWNERSHIP Charleen K. Ikeda and Barbara Wilson certify that: 1. They are the duly elected and acting Vice President and Secretary, respectively, of Amfac Credit Corporation, a California corporation (herein called "this corporation"). 2. This corporation owns 100% of the outstanding shares of each class of Amfac Commercial Credit, a California corporation. 3. The board of directors of this corporation has duly adopted the following resolution: RESOLVED, that this corporation merge Amfac Commercial Credit, its subsidiary, into itself and assume all its liabilities pursuant to Section 1110 of the California Corporations Code. RESOLVED FURTHER, that each of the officers of this corporation be and each of them hereby is authorized and directed to take all such further action and to execute and deliver all such further documents as the officers acting shall determine to be necessary, such determination to be conclusively evidenced by their action in the premises. RESOLVED FURTHER, that Article One of the Articles of Incorporation of this corporation be amended to read in its entirety as follows: "One: The name of this Corporation is Amfac Commercial Credit." IN WITNESS WHEREOF, the undersigned have executed this certificate on December 20, 1979. /s/ Charleen K. Ikeda --------------------------------- Charleen K. Ikeda, Vice President /s/ Barbara Wilson Barbara Wilson, Secretary The undersigned, Charleen K. Ikeda and Barbara Wilson, the Vice President and Secretary, respectively, of Amfac Credit Corporation, each declares under penalty of perjury that the matters set out in the foregoing Certificate of Ownership are true of her own knowledge. Executed at Honolulu, Hawaii, on December20, 1979. /s/ Charleen K. Ikeda ---------------------------------- Charleen K. Ikeda /s/ Barbara Wilson ---------------------------------- Barbara Wilson CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION CLYDE E. SUMIDA and BARBARA WILSON certify that: 1. They are the Vice President and the Secretary, respectively, of AMFAC COMMERCIAL CREDIT, a California corporation. 2. Article One of the Articles of Incorporation of this corporation is amended to read as follows: "The name of this corporation is OAHU WASTE ENERGY RECOVERY, INC." 3. Article Two of the Articles of Incorporation of this corporation is amended to read as follows: "The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code." 4. Article Three of the Articles of Incorporation of this corporation is amended to read as follows: "The county in the State of California where the principal office for the transaction of the business of this corporation is to be located is San Francisco County." 5. Article Sixth of the Articles of Incorporation of this corporation is added to read as follows: "This corporation elects to be governed by all of the provisions of the General Corporation Law effective January 1, 1977 nor otherwise applicable to it under Chapter 23 thereof." 6. The foregoing amendments of Articles of Incorporation have been duly approved by the Board of Directors. 7. The foregoing amendments of Articles of Incorporation have been duly approved by the sole stockholder in accordance with Section 902 of the Corporations Code. The total number of outstanding shares of the corporation is 1,000. The number of shares voting in favor of the amendments equaled or exceeded the vote required. The percentage vote required was more than 50%. The undersigned declare under penalty of perjury that the matters set forth in the certificate are true and correct of their own knowledge. Executed at Honolulu, Hawaii on December 13, 1983. /s/ Clyde E. Sumida ---------------------------------- CLYDE E. SUMIDA, Vice President /s/ Barbara Wilson ---------------------------------- BARBARA WILSON, Secretary CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION The undersigned certify that: 1. They are the executive vice-president and assistant secretary, respectively, of OAHU WASTE ENERGY RECOVERY, INC., a California corporation. 2. Article one of the Articles of Incorporation of this corporation is amended to read as follows: First: The name of the Corporation is COVANTA OAHU WASTE ENERGY RECOVERY, INC. 3. The foregoing amendment of Articles of Incorporation has been duly approved by the board of directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902, California Corporations Code. The total number of outstanding shares of the corporation is 1,000. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. DATE: 3/1/01 /s/ Anthony Orlando Anthony Orlando, Executive Vice President /s/ Patricia Collins Patricia Collins, Assistant Secretary EX-99.T3A49 176 exhibit_t3a-49.txt Delaware PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA POWER EQUITY CORPORATION" AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE THIRTIETH DAY OF NOVEMBER, A.D. 1999, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "GEOTHERMAL POWER, INC." TO "OGDEN POWER EQUITY CORPORATION", FILED THE TWENTY-SIXTH DAY OF JULY, A.D. 1994, AT 12:30 O'CLOCK P.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN POWER EQUITY CORPORATION" TO "COVANTA POWER EQUITY CORPORATION", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE TWENTY-NINTH DAY OF MAY, A.D. 2001, AT 9 O'CLOCK A.M. CERTIFICATE OF CORRECTION, FILED THE TWENTY-SECOND DAY OF JUNE, A.D. 2001, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE FIFTH DAY OF JULY, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID /s/ Harriet Smith Windsor Harriet Smith Windsor, Secretary of State 2214964 B100H AUTHENTICATION: 2951557 040135479 DATE: 02-25-04 Delaware PAGE 2 The First State CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor Harriet Smith Windsor, Secretary of State 2214964 B100H AUTHENTICATION: 2951557 040135479 DATE: 02-25-04 CERTIFICATE OF INCORPORATION OF GEOTHERMAL POWER, INC. Article I Name of Corporation The name of the Corporation is Geothermal Power, Inc. Article II Registered Office The registered office of the Corporation in the State of Delaware shall be at 32 Loockeman SQ. Suite L-l00, City of Dover, County of Kent. The name of its registered agent in charge thereof shall be The Prentice-Hall Corporation System, Inc. Article III Purposes The purposes of the Corporation are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware, provided, however, the Corporation may not engage in any commercial activity other than to acquire and manage either directly or indirectly through one or more other corporations or partnerships an equity interest in a binary geothermal power plant. Article IV Stock A. The aggregate number of shares which the Corporation is authorized to issue is 1,000 shares of Class A common stock (par value $1.00 each) and 250 shares of Class B common stock (par value $.0l each). B. The preferences, limitations and relative rights of the holders of the Corporation's Class A common stock are as follows: 1. Holders of Class A common stock shall be entitled to nominate and elect all directors of the Corporation except for the one director nominated and elected by the holders of the Corporation's Class B common stock. 2. The holders of Class A common stock shall be subject to assessment of additional capital funds if the Board of Directors of the Corporation shall have assessed the holders of Class A and Class B common stock on an equal per share (or pro rata) basis to cover any -------- losses of or capital contributions to the partnership in which the Corporation has a direct or indirect interest (presently known as Second Imperial Geothermal Company). This assessment shall be valid and binding regardless of whether the holders of the Corporation's Class B common stock make the election authorized in Article IV, Paragraph B.6(ii) of this Certificate of Incorporation. C. The preferences, limitations and relative rights of the holders of the Corporation's Class B common stock are as follows: 1. Holders of Class B common stock shall not be entitled to vote on any matter presented to the stockholders for a vote pursuant to the General Corporation Law of Delaware or the Certificate of Incorporation or Bylaws of the Corporation except as provided in Article IV, Paragraph B.1 or Article IV, Paragraph 8.4 of this Certificate of Incorporation or as otherwise required by the General Corporation Law of Delaware. Holders of Class B common stock, voting as a class, shall be entitled to (i) to nominate and elect one director of the Corporation, and (ii) to vote on any proposed amendment to Article III of this Certificate of Incorporation. 2. Holders of Class B common stock shall be entitled to participate on an equal per-share (pro rata) basis with the holders of Class A common stock in any dividends or other distributions to the stockholders of the Corporation. 3. The Corporation shall redeem all of the outstanding Class B common stock for an aggregate of One Dollar ($1.00) on or within ten days after January 1, 1992 unless prior to that date the partnership in which the Corporation has a direct or indirect interest (presently known as Second Imperial Geothermal Company) has closed on financing (i) to construct a power plant to supply power pursuant to the contract between Second Imperial Geothermal Company and Southern California Edison Company dated April 16, 1985, as amended, together with any extensions, renewals, modifications or restatements thereof or (ii) to acquire the San Diego Gas and Electric Company's binary power plant located on the Heber Geothermal Reservoir in California, provided that the contract between Second Imperial Geothermal Company and Southern California Edison Company dated April 16, 1985, as amended, together with any extensions, renewals, modifications or restatements thereof, has expired or otherwise terminated by December 31, 1991. This Article IV, Paragraph B.3 shall lapse and have no further effect in the event of the closing on such financing. 4. After December 31, 1994, the Corporation shall have the right, but not the obligation, with the consent of the holders of a majority of the outstanding shares of Class B common stock, to redeem all of the outstanding shares of Class B common stock for cash in an amount equal to the fair market value of the percentage equity interest in the Corporation represented by the Class B common stock. 5. Shares of Class B common stock, once issued by the Corporation, may not be transferred or sold to anyone other than the Corporation, or ERC Environmental and Energy Services Co., Inc. (ERCE), or without the prior written consent of ERCE, which shall not unreasonably be withheld, to any other party. There shall be no obligation on the part of the Corporation or ERCE to purchase said shares. 6. Provided that the partnership in which the Corporation has a direct or indirect interest (presently known as Second Imperial Geothermal Company) has closed on financing (i) to construct a power plant to supply power pursuant to the contract between Second Imperial Geothermal Company and Southern California Edison Company dated April 16, 1985, as amended, together with any extensions, renewals, modifications or restatements thereof or (ii) to acquire the San Diego Gas and Electric Company's binary power plant located on the Heber Geothermal Resource in California, the holders of Class B common stock shall be subject to assessment of additional capital funds if: (i) The Board of Directors of the corporation shall have assessed the holders of Class A and Class B common stock on an equal per-share (or pro rata) basis to cover any losses of or capital contributions to the partnership in which the Corporation has a direct or indirect interest (presently known as Second Imperial Geothermal Company); and (ii) The following exemption from said assessment does not apply: the holders of Class B common stock shall be exempt from said assessment if they have surrendered to the Corporation the number of shares equal to the lesser of (A) the number of shares of Class B common stock not paying the assessment, or (B) that number of shares of Class B common stock determined by multiplying (a) a fraction, (1) the numerator of which shall be the number of shares of Class B common stock not paying the assessment times the per-share assessment and (2) the denominator of which shall be the fair market value of that percentage of equity interest which is equal to the percentage of indirect ownership held by the holders of Class B common stock in the partnership in which the Corporation has a direct or indirect interest (presently known as Second Imperial Geothermal Company), which value, exclusively for the purpose of this Article IV, Paragraph B.6(ii) of the Certificate of Incorporation, shall be determined by the Board of Directors, acting in good faith, and said determination shall be conclusive for this purpose, times (b) the number of shares of Class B common stock not paying the assessment. If within thirty days following the date selected by the Board of Directors as the date for payment of any assessment made pursuant to Article IV, Paragraph B.6 of the Certificate of Incorporation, the holder(s) of any Class B common stock have neither paid the assessment nor surrendered the appropriate number of Class B shares required to claim the exemption from such assessment, that number of Class B common stock shares which would have been surrendered to claim the exemption from the assessment shall automatically be cancelled and shall revert to the Corporation as treasury shares. Article V Preemptive Rights Shareholders shall have preemptive rights. No additional shares of Class A common stock shall be issued unless the Corporation shall have first offered to issue to the holders of Class B common stock, on the same terms and conditions as such proposed issuance of Class A common stock, additional shares of Class B common stock in an amount sufficient to permit the holders of the Class B common stock to maintain their percentage interest in the Corporation following such issuance of Class A common stock. In response to such offer, the holders of the Class B common stock may elect to purchase all or any portion of the offered shares. No amendment shall be made to Article IV, Paragraph A, of this Certificate of Incorporation that would result in there being an insufficient number of authorized shares of Class B common stock to comply with this Article V. Article VI Regulation of Internal Affairs Provisions for the regulation of the internal affairs of the Corporation, in addition to those set forth in Article IV of the Certificate of Incorporation, shall be set forth in the Bylaws of the Corporation as they may from time to time be amended. Article VII Board of Directors A. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, and the Directors need not be elected by written ballot unless such a requirement is imposed by the Bylaws of the Corporation. B. The initial Board of Directors shall consist of the following persons, whose respective mailing addresses are as follows: Name Mailing Address J. Mark Elliott 3211 Jermantown Road Fairfax, Virginia 22030 John E. Gray 3211 Jermantown Road Fairfax, Virginia 22030 John F. Walter 3211 Jermantown Road Fairfax, Virginia 22030 Article VIII Provisions for the Management of the Business The following provisions shall govern the management of the business and the conduct of the affairs of the Corporation, and it is expressly provided that they are intended to be in furtherance and not in limitation or exclusion of the powers conferred by the laws of the State of Delaware: a. The Board of Directors is expressly authorized to make, amend and repeal the Bylaws of the Corporation. b. Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation. c. The Corporation reserves the right to alter, amend or repeal any provision contained in this Certificate of Incorporation in the manner now or hereinafter prescribed by the laws of the State of Delaware. All rights herein conferred are granted subject to this reservation. Article IX Liability No Director shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as a Director, except for any matter in respect of which such Director shall be liable under Section 174 of the General Corporation Law of Delaware or any amendment thereto or successor provision thereto or shall be liable by reason that, in addition to any and all other requirements for such liability, he or she (i) shall have breached his or her duty of loyalty to the corporation or its stockholders, (ii) shall not have acted in good faith or, in failing to act, shall not have acted in good faith, (iii) shall have acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law or (iv) shall have derived an improper personal benefit. Neither the amendment nor repeal of this Article IX, nor the adoption of any provision of the Certificate of Incorporation inconsistent with this Article IX shall eliminate or reduce the affect of this Article IX in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article IX would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. If the General Corporation Law of Delaware is hereafter amended to permit further elimination or limitation of the personal liability of Directors, then the liability of each Director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of Delaware as so amended. Article X Indemnification The Corporation shall indemnify each of its officers and directors, whether or not then in office (and his or her personal representative, executor, administrator and heirs) against all reasonable expenses actually and necessarily incurred by him or her in connection with the defense of any litigation to which he or she may have been made a party because he or she is or was a director or officer of the Corporation. He or she shall have no right to reimbursement, however, in relation to matters as to which he or she has been adjudged liable to the Corporation for negligence or misconduct in the performance of his or her duties. The right to indemnity for expenses shall also apply to expenses or suits which are compromised or settled if the court having jurisdiction of the action shall approve such settlement. The foregoing right of indemnification shall be in addition to, and not exclusive of, all other rights to which such director or officer may be entitled, and shall not be construed as a limitation upon the power of the Corporation to grant indemnity to the full extent permitted by law. Article XI Incorporator The name and mailing address of the incorporator are as follows: Name Mailing Address John H. Quinn, Jr. 1730 K Street, N.W., Suite 700 Washington, D.C. 20006-3898 IN WITNESS WHEREOF, the undersigned has made, signed and acknowledged this Certificate of Incorporation this 29th day of November, 1989. /s/ John H. Quinn, Jr. John H. Quinn, Jr. AMENDMENT TO CERTIFICATE OF INCORPORATION OF GEOTHERMAL POWER. INC. Geothermal Power, Inc.. a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify: The amendment to the Corporation's Certificate of Incorporation set forth in the following resolution approved by the Corporation's Board of Directors and stockholders was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware: That the Corporation amend its Certificate of Incorporation as follows: Article I Name of Corporation The name of the corporation is Ogden Power Equity Corporation. IN WITNESS WHEREOF, Geothermal Power, Inc. has caused this Amendment to be signed by its duly authorized officers, this 15th day of July, 1994. GEOTHERMAL POWER, INC. /s/ John F. Walter John F. Walter, Vice President ATTEST: /s/ Sharon G. Province Sharon G. Province, Secretary CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN POWER EQUITY CORPORATION It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN POWER EQUITY CORPORATION. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA POWER EQUITY CORPORATION 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March 2001. /s/ Patricia Collin Name: Patricia Collins Title: Asst. Secretary STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/20O1 010126399 - 2214964 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 05/29/2001 010253929 - 2214964 CERTIFICATE OF OWNERSHIP AND MERGER OF Ogden Energy Channelview Holdings, Inc. SIGC Holdings, Inc. (Delaware corporations) INTO Covanta Power Equity Corporation (a Delaware corporation) It is hereby certified that: 1. Covanta Power Equity Corporation hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of each class of the stock Ogden Energy Channelview Holdings, Inc. and SIGC Holdings. Inc. which is also a business corporation of the State of Delaware. 3. On April 30, 2001, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Energy Channelview Holdings, Inc. and SIGC Holdings, Inc. into the Corporation: RESOLVED that Ogden Energy Channelview Holdings, Inc. and SIGC Holdings, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Energy Channelview Holdings, Inc. and SIGC Holdings, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Energy Channelview Holdings, Inc. and SIGC Holdings, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Energy Channelview Holdings, Inc. and SIGC Holdings, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the law; of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be upon filing. Executed on May 16, 2001 Covanta Power Equity Corporation By: /s/ Jeffrey R. Horowitz ----------------------- Jeffrey R. Horowitz, Secretary CERTIFICATE OF CORRECTION OF CERTIFICATE OF OWNERSHIP AND MERGER OF OGDEN ENERGY CHANNELVIEW HOLDINGS, INC. It is hereby certified tint: 1. The name of the corporation (hereinafter called the "corporation") is Ogden Energy Channelview Holdings, Inc. 2. The Certificate of Ownership and Merger of the corporation, which was filed by the Secretary of State of Delaware on May 29, 2001, is hereby corrected. 3. The inaccuracy to be corrected in said instrument is as follows: The corporation as a parent company was merged prior to its subsidiary. 4. The portion of the instrument in corrected form is as follows: Ogden Energy Channelview Holdings, Inc. should not be extinguished. Signed on June 8, 2001 /s/ Bruce W. Stone ------------------ Bruce W. Stone, Executive Vice President STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 06/22/2001 010303410 - 2214964 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 07/05/2001 010323403 - 2214964 CERTIFICATE OF OWNERSHIP AND MERGER OF Ogden Energy Channelview Holdings, Inc. (Delaware corporations) INTO Covanta Power Equity Corporation (a Delaware corporation) It is hereby certified that: 1. Covanta Power Equity Corporation hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of each class of the stock Ogden Energy Channelview Holdings, Inc. which is also a business corporation of the State of Delaware. 3. On April 30, 2001, the Board of Directors of the Corporation adopted the following resolutions to merge Ogden Energy Channelview Holdings. Inc. into the Corporation: RESOLVED that Ogden Energy Channelview Holdings, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Ogden Energy Channelview Holdings, Inc. be vested in and held end enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Ogden Energy Channelview Holdings, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Ogden Energy Channelview Holdings, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary ads within the State of Delaware and within any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be upon filing. Executed on July 3, 2001 Covanta Power Equity Corporation By: /s/ Jeffrey R. Horowitz ----------------------- Jeffrey R. Horowitz, Secretary EX-99.T3A54 177 exhibit_t3a-54.txt Exhibit T3A-54 Delaware PAGE 1 The First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA RRS HOLDINGS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE EIGHTEENTH DAY OF NOVEMBER, A.D. 1992, AT 3 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "RRS HOLDINGS INC." TO "COVANTA RRS HOLDINGS, INC.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. /s/ Harriet Smith Windsor Harriet Smith Windsor, Secretary of State 2316649 8100H AUTHENTICATION: 2951593 040135507 DATE: 02-25-04 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 03:00 PM 11/18/1992 923235482 - 2316649 CERTIFICATE OF INCORPORATION -of- RRS HOLDINGS INC. -00000- FIRST: The name of the corporation is RRS Holdings Inc. (hereinafter sometimes called the "Corporation"). SECOND: The address of the Corporation's registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. THIRD: The nature of the business or purposes to be conducted or promoted are to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 1,000 and the par value of each of such shares is One Dollar ($1.00). FIFTH: The name and mailing address of the incorporator is as follows: Jared L. Landaw Winthrop, Stimson, Putnam & Roberts One Battery Park Plaza New York, New York 10004-1490 SIXTH: The following additional provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for the creation, definition, limitation and regulation of the powers of the Corporation, the directors and the stockholders: 1. Election of directors need not be by written ballot. The Board of Directors shall have power to make, alter, amend and repeal the By-Laws of the Corporation and to fix the compensation of directors for services in any capacity. 2. Any director may be removed at any time, with or without cause, upon the affirmative vote of the holders of a majority of the stock of the Corporation at that time having voting power for the election of directors. 3. Any corporate action, with respect to which the vote of the stockholders at a meeting thereof is required or permitted by any provision of the General Corporation Law of the State of Delaware or of the Certificate of Incorporation or the By-Laws of the Corporation, is authorized to be taken and may be taken without that vote and meeting, and that vote and meeting may be dispensed with, with the written consent of the holders of a majority (or, if with respect to a particular corporate action where the General Corporation Law of the State of Delaware or the certificate of Incorporation or the By-Laws of the Corporation specifies a greater percentage, by the holders of that greater percentage) of the stock that would have been entitled to vote upon that action if a meeting were held. Prompt notice shall be given to all stockholders of the taking of any corporate action pursuant to the provisions of this paragraph 3 unless that action has been consented to in writing by the holders of all of the stock that would have been entitled to vote upon that action if a meeting were held. 4. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. SEVENTH: The Corporation shall indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Corporation, by reason of the fact that he, or the person whose legal representative he is, (1) is or was a stockholder, director, officer, employee or agent of the Corporation (including the incorporator thereof), or (2) is or was serving at the request of the Corporation as a director, officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise, or (3) is or was a director, officer or employee of the Corporation serving at the request of the Corporation as a fiduciary of an employee benefit plan or trust maintained for the benefit of employees of the Corporation or employees of any such other enterprise, partnership, joint venture, trust, or other enterprise, against judgments, fines, penalties, amounts paid in settlement, and expenses, including attorneys' fees, actually and reasonably incurred by him and the person whose legal representative he is, in connection with such action, suit or proceeding, or any appeal therein, to the fullest extent permitted by law. Expenses which may be indemnifiable under this Section incurred in defending an action, suit or proceedings may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors upon agreement by or on behalf of the stockholder, director, officer, employee or agent, or his legal representative, to repay such amount if he is later found not entitled to be indemnified by the Corporation as authorized in this Article Seventh. The Corporation shall not indemnify any stockholder, director, officer, employee or agent against judgments, fines, amounts paid in settlement and expenses, including attorneys' fees, to an extent greater than that authorized by this Article Seventh but the Corporation may procure insurance providing greater indemnification and may share the premium cost with any stockholder, director, officer, employee or agent on such basis as may be agreed upon. IN WITNESS WHEREOF, I, the undersigned, being the incorporator named above, have hereunto set my hand and seal this 18th day of November, 1992. /s/ Jared L. Landaw Jared L. Landaw Sole Incorporator CERTIFICATE OF CHANGE OF LOCATION OF REGiSTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is RRS Holdings Inc. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on January 15, 1996 /s/_______________ Authorized Officer CERTIFICATE OF AMENDMENT OF CERTIFICATE OF iNCORPORATION OF RRS HOLDiNGS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is RRS HOLDiNGS, iNC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA RRS HOLDiNGS, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March, 2001. /s/ Patricia Collins Name: Patricia Collins Title: Asst. Secretary STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 03/14/20O1 010126571 - 2316649 EX-99.T3A55 178 exhibit_t3a-55.txt Exhibit T3a-55 Delaware The First State
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA SECURE SERVICES, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-FIFTH DAY OF AUGUST, A.D. 1986, AT 3 O'CLOCK P.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN ENVIRONMENTAL SERVICES, INC." TO "OGDEN WASTE TREATMENT SERVICES, INC.", FILED THE THIRD DAY OF JANUARY, A. D. 1992, AT 12:30 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE FOURTH DAY OF MAY, A.D. 1998, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN WASTE TREATMENT SERVICES, INC." TO "COVANTA SECURE SERVICES, INC.", FILED THE FOURTEENTH DAY OF MARCH, A. D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION. ---------------------------------------------------------------- Harriet Smith Windsor, Secretary of State
CERTIFICATE OF INCORPORATION OF OGDEN ENVIRONMENTAL SERVICES, INC. 1. The name of the corporation is: OGDEN ENVIRONMENTAL SERVICES, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is (One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars ($100.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: J. L. Austin Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 25th day of August, 1986. ============================= J. L. Austin ----------------------------- CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION Ogden Environmental Services, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That the Board of Directors of said corporation, by the unanimous written consent of its members, filed with the minutes of the Board, adopted resolution proposing and declaring advisable the following amendment to the Certificate of Incorporation of said corporation: "RESOLVED, that the certificate of Incorporation of Ogden Environmental Services, Inc. be amended by changing the first Article thereof so that, as amended, said Article shall be and read as follows: `1. The name of the corporation is: OGDEN WASTE TREATMENT SERVICES, INC.'" SECOND: That in lieu of a meeting and vote of stockholders, the stockholders have given unanimous written consent to said amendment in accordance with the provisions of Section 228 of the General Corporation Law of the State of Delaware. THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, said Ogden Environmental Services, Inc. has caused this certificate to be signed by Jeffrey R. Horowitz, its Senior Vice President, and attested by Louis D. Montresor, its Assistant Secretary, this 2nd day of January, 1992. OGDEN ENVIRONMENTAL SERVICES, INC. By: /s/ Jeffrey R. Horowitz Jeffrey R. Horowitz Senior Vice President ATTEST: By: /s/ Louis D. Montresor Louis D. Montresor Assistant Secretary CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN WASTE TREATMENT SERVICES, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1-15, 1996 Authorized Officer ------------------------- CERTIFICATE OF OWNERSHIP AND MERGER OF STOCKTON SOIL TREATMENT FACILITY, INC. (a California Corporation) INTO OGDEN WASTE TREATMENT SERVICES, INC. (a Delaware Corporation) It is hereby certified that: 1. Ogden Waste Treatment Services, Inc. [hereinafter sometimes referred to as the "Corporation"] is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding share of Common stock of Stockton Soil Treatment Facility, Inc., which is a business corporation of the State of California. 3. The laws of the jurisdiction of organization of Stockton Soil Treatment Facility, Inc. permit the merger of a business corporation of that jurisdiction with a business corporation of another jurisdiction. 4. The Corporation hereby merges Stockton Soil Treatment Facility, Inc. into the Corporation. 5. The following is a copy of the resolutions adopted on April 20, 1998 by the Board of Directors of the Corporation to merge the said Stockton Soil Treatment Facility, Inc. into the Corporation: RESOLVED that Stockton Soil Treatment Facility, Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers, and franchises of Stockton Soil Treatment Facility, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Stockton Soil Treatment Facility, Inc. in its name. RESOLVED that this Corporation assume all of the obligations of Stockton Soil Treatment Facility, Inc. RESOLVED that this Corporation shall cause to be executed and filed and/or recorded the documents prescribed by the laws of the State of Delaware, by the laws of the State of California, and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the jurisdiction of organization of Stockton Soil Treatment Facility, Inc. and of this Corporation and in any other appropriate jurisdiction. Executed on April 27, 1998. OGDEN WASTE TREATMENT SERVICES, INC. By: /s/ Bruce W. Stone Bruce W. Stone, Executive Vice President CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN WASTE TREATMENT SERVICES, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN WASTE TREATMENT SERVICES, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA SECURE SERVICES, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March _____, 2001. ---------------------------------- Name: Patricia Collins ---------------------------------- Title: Asst. Secretary EX-99.T3A57 179 exhibit_t3a-57.txt Exhibit T3A-57 -------------- STATE OF CALIFORNIA SECRETARY OF STATE I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 6 page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this day of FEB 26 2004 /s/ Kevin Shelley ----------------- Secretary of State NOV 23 1994 ARTICLES OF INCORPORATION OF OGDEN SIGC ENERGY II, INC. 1. The name of the Corporation is: Ogden SIGC Energy II, Inc. 2. The initial agent for service of process is: THE PRENTICE-HALL CORPORATION SYSTEMS, INC. 3. The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business, or the practice of a profession permitted to be Incorporated by the California Corporations Code. 4. The total number of shares of stock which the corporation shall have authority to issue is One Thousand (1,000) shares and all of such shares shall be without par value and shall be of only one class. 5. The board of directors is authorized to make, alter or repeal the Bylaws of the Corporation. /s/ Sharon G. Province ---------------------- Sharon G. Province Incorporator I hereby declare that I am the person who executed the foregoing Articles of Incorporation which execution is my act and deed. /s/ Sharon G. Province ---------------------- Sharon G. Province Incorporator November 16, 1994 Secretary of State P.O. Box 944230 Sacramento, CA 94244-0230 To Whom It May Concern: On behalf of Ogden SIGC Geothermal Operations, Inc., I hereby grant permission for the use of Ogden SIGC Energy II, Inc. No letterhead available. OGDEN SIGC GEOTHERMAL OPERATIONS, INC. /s/ Sharon G. Province Sharon G. Province Secretary Jan 26 1995 CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF OGDEN SIGC ENERGY II, INC. (A California Corporation) To Secretary of State State of California Pursuant to the provisions of the General Corporation Law of the State of California, the undersigned officers of the corporation hereinafter named do hereby certify as follows: 1. The Articles of Incorporation of this corporation, Ogden SIGC Energy II, Inc.. a California corporation, be amended to add Article 6 to read in full as follows: "6. The affirmative vote of the holders of all the issued and outstanding to take any of the following corporate actions with respect to this Corporation or Second Imperial Geothermal Company a California limited partnership ("SIGC"), in which this Corporation is a general partner: (i) any merger, consolidation or sale of all or substantially all of the assets of this Corporation or SIGC; (ii) the filing of a voluntary petition in bankruptcy or the commencement of a voluntary case by this Corporation or by this Corporation in its capacity as a general partner of SIGC on behalf of SIGC under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent to the entry of an order for relief in an involuntary case under any such law, or the application by this Corporation or by this Corporation in its capacity as a general partner of SIGC on behalf of SIGC for or consent to the appointment of a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of this Corporation, SIGC or any substantial part of their respective properties; and (iii) any amendment to this Article of the Articles of Incorporation." 2. The amendment herein provided for has been approved by the corporation's Board of Directors. 3. The foregoing amendment of the articles of incorporation has been duly approved by the required vote f shareholders in accordance with Section 902 of the Corporation Code. The total number of outstanding shares of the corporation is 1000. The percentage vote required was more than 50%. The number of the aforesaid outstanding shares which furnished a written consent in favor of the amendments herein provided for is One Thousand, and said number exceeded the percentage of the vote or written consent required to approve the said amendments. Signed on December 30, 1994. OGDEN SIGC ENERGY II, INC. /s/ John F. Walter ------------------------ John F. Walter, President /s/ Dale L. Daileader ----------------------------------- Dale L. Daileader, Assistant Secretary On this 30th day of December, 1994, In the City of Fairfax in the Commonwealth of Virginia, each of the undersigned does hereby declare under the penalty of perjury that he signed the foregoing Certificate of Amendment of Articles of Incorporation in the official capacity set forth beneath his signature, and that the statements set forth in said certificate are true of his own knowledge. /s/ John F. Walter ------------------------ John F. Walter, President /s/ Dale L. Daileader ----------------------------------- Dale L. Daileader, Assistant Secretary Mar 14 2001 CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION The undersigned certify that: 1. They are the president and assistant secretary, respectively, of OGDEN SIGC ENERGY II, INC., a California corporation. 2. Article one of the Articles of Incorporation of this corporation is amended to read as follows: First: The name of the Corporation is COVANTA SIGC ENERGY II, INC. 3. The foregoing amendment of Articles of Incorporation has been duly approved by the board of directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902, California Corporations Code. The total number of outstanding Shares of the corporation is 1000. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. Date: March 12, 2001 /s/ Paul Clements ----------------------- Paul Clements, President /s/ Patricia Collins -------------------- Patricia Collins Assistant Secretary A0605310 FILED DEC 18 2003 CERTIFICATE OF AMENDMENT TO ARTICLES OF INCORPORATION OF COVANTA SIGC ENERGY II, INC. Covanta SIGC Energy II, Inc., a corporation organized and existing under the laws of the State of California (the "Corporation"), hereby certifies as follows: 1. The name of the Corporation is Covanta SIGC Energy II, Inc. The name under which the Corporation was originally incorporated was Ogden SIGC Energy II, Inc. The original Articles of Incorporation was filed with the Secretary of State of the State of California on November 23, 1994. 2. On November 21,2003, the United States Bankruptcy Court for the Southern District of New York entered an order (the "Order") confirming the Heber Debtors' Third Amended Joint Plan of Reorganization Under Chapter 11 of The Bankruptcy Code (Case Nos. 02-40882, 40884-40888 (CB)) (the "Plan") which Plan provides for the reorganization of the Corporation pursuant to Chapter 11 of Title 11 of the United States Bankruptcy Code. The Order grants the Corporation the authority to amend the Articles of Incorporation as provided herein. 3. Pursuant to the Order, Article 6 of the Articles of Incorporation is amended by adding the following new sentence after the last sentence of said Article: "Pursuant to 11 U.S.C. 1123, notwithstanding any other provision contained herein to the contrary, the Corporation shall not issue non-voting equity securities." IN WITNESS WHEREOF, the undersigned has duly executed this Amended and Restated Articles of Incorporation on this 18th day of December, 2003 in Fairfield, New Jersey. I further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of my own knowledge. /s/ Timothy Simpson ------------------- Name: Timothy Simpson Title: Assistant Secretary EX-99.T3A58 180 exhibit_t3a-58.txt ExhibitT3A-58 ------------- STATE OF CALIFORNIA SECRETARY OF STATE I, Kevin Shelley, Secretary of State of the State of California, hereby certify: That the attached transcript of 3 page(s) was prepared by and in this office from the record on file, of which it purports to be a copy, and that it is full, true and correct. IN WITNESS WHEREOF I execute this certificate and affix the Great Seal of the State of California this day of FEB 26, 2004 /s/ Kevin Shelley Secretary of State CERTIFICATE OF INCORPORATION OF OGDEN SIGC GEOTHERMAL OPERATIONS, INC. 1. The name of the corporation is: Ogden SIGC Geothermal Operations, Inc. 2. Its initial registered agent is The Prentice-Hall Corporation System, Inc. 3. The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business, or the practice of a profession permitted to be incorporated by the California Corporations Code. 4. The total number of shares of stock which the corporation shall have authority to issue is One Thousand Five Hundred (1,500) all of such shares shall be without par value and shall be of only one class. 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. /s/ Sharon G. Province Sharon G. Province Incorporator I hereby declare that I am the person who executed the foregoing Articles of Incorporation which execution is my act and deed. /s/ Sharon G. Province Sharon G. Province Incorporator November 19, 1992 Secretary of State 455 Golden Gate Avenue, Suite 2236 San Francisco, CA 94102 To Whom It May Concern: On behalf of Ogden Geothermal Operations, Inc., I hereby grant permission for the use of Ogden SIGC Geothermal Operations, Inc. OGDEN GEOTHERMAL OPERATIONS, INC. /s/ Sharon G. Province Secretary SGP/ljm CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION The undersigned certify that: 1. They are the president and assistant secretary, respectively, of OGDEN SIGC GEOTHERMAL OPERATIONS, INC., a California corporation. 2. Article one of the Articles of Incorporation of this corporation is amended to read as follows: First: The name of the Corporation is COVANTA SIGC GEOTHERMAL OPERATIONS, INC. 3. The foregoing amendment of Articles of Incorporation has been duly approved by the board of directors. 4. The foregoing amendment of Articles of Incorporation has been duly approved by the required vote of shareholders in accordance with Section 902, California Corporations Code. The total number of outstanding shares of the corporation is 500. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. DATE: March 12, 2001 /s/ Paul Clements Paul Clements, President /s/ Patricia Collins Patricia Collins, Asst Secretary EX-99.T3A63 181 exhibit_t3a-63.txt Exhibit T3a-63 Delaware The First State
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF "COVANTA WATER SYSTEMS, INC." AS RECEIVED AND FILED IN THIS OFFICE. THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED: CERTIFICATE OF INCORPORATION, FILED THE TWENTY-SEVENTH DAY OF JANUARY, A.D. 1994, AT 3 O'CLOCK P.M. CERTIFICATE OF CHANGE OF REGISTERED AGENT, FILED THE SIXTH DAY OF FEBRUARY, A.D. 1996, AT 9 O'CLOCK A.M. CERTIFICATE OF AMENDMENT, CHANGING ITS NAME FROM "OGDEN WATER SYSTEMS, INC." TO "COVANTA WATER SYSTEMS, INC.", FILED THE FOURTEENTH DAY OF MARCH, A.D. 2001, AT 9 O'CLOCK A.M. CERTIFICATE OF OWNERSHIP, FILED THE EIGHTH DAY OF JUNE, A. D. 2001, AT 9 O'CLOCK A.M. AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION.
/s/ Harriet Smith Windsor Harriet Smith Windsor, Secretary of State 2373409 8100H AUTHENTICATION: 2951841 040135936 DATE: 02-25-04 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 03:00 PM 1/27/1994 944008565 - 2373409 CERTIFICATE OF INCORPORATION OF OGDEN WATER SYSTEMS, INC. 1. The name of the corporation is: OGDEN WATER SYSTEMS, INC. 2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Hundred (100) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Hundred Dollars ($100.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: M. A. Brzoska Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 27th day of January, 1994. /s/ M. A. Brzoska M. A. Brzoska CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN WATER SYSTEMS, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on January 15, 1996. /s/ Authorized Officer STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 09:00 AM 02/06/1996 960034696 -- 2373409 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN WATER SYSTEMS, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is Ogden Water Systems, Inc. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is Covanta Water Systems, Inc. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March 2001. /s/ Patricia Collins Name: Patricia Collins Title: Asst. Secretary STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 9:00 AM 03/14/2001 010126590 - 2373409 STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 9:00 AM 06/08/2001 010278719 - 2373409 CERTIFICATE OF OWNERSHIP AND MERGER OF Yorkshire USA, Inc. (Delaware corporations) INTO Covanta Water Systems, Inc. (a Delaware corporation) It is hereby certified that: 1. Covanta Water Systems, Inc. hereinafter sometimes referred to as the "Corporation" is a business corporation of the State of Delaware. 2. The Corporation is the owner of all of the outstanding shares of each class of the stock of Yorkshire USA, Inc., which is also a business corporation of the State of Delaware. 3. On April 30, 2001, the Board of Directors of the Corporation adopted the following resolutions to merge Yorkshire USA, Inc. into the Corporation RESOLVED that Yorkshire USA. Inc. be merged into this Corporation, and that all of the estate, property, rights, privileges, powers and franchises of Yorkshire USA, Inc. be vested in and held and enjoyed by this Corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by Yorkshire USA, Inc. in its name. RESOLVED that this Corporation shall assume all of the obligations of Yorkshire USA, Inc. RESOLVED that this Corporation shall cause to be executed and filed and or recorded the documents prescribed by the laws of the State of Delaware and by the laws of any other appropriate jurisdiction and will cause to be performed all necessary acts within the State of Delaware and within any other appropriate jurisdiction. RESOLVED that the effective time of the Certificate of Ownership and Merger setting forth a copy of these resolutions, and the time when the merger therein provided for, shall become effective shall be upon filing. Executed on June 8, 2001 Covanta Water Systems, Inc. By: c/s Jeffrey R. Horowitz Jeffrey R. Horowitz, Secretary EX-99.T3A69 182 exhibit_t3a-69.txt Exhibit T3A-69. HEBER LOAN PARTNERS PARTNERSHIP AGREEMENT THIS AGREEMENT is made and entered into this _27_th day of March 1989, by and between ERC ENERGY, INC., a Delaware corporation ("ERC ENERGY"), a wholly owned subsidiary of ERC INTERNATIONAL, INC., a Delaware corporation ("ERC INTERNATIONAL"), and CENTENNIAL GEOTHERMAL CO., a Delaware corporation ("CENTENNIAL GEOTHERMAL"), a wholly owned subsidiary of CENTENNIAL ENERGY, INC., a Delaware Corporation ("CENTENNIAL"). ERC ENERGY and CENTENNIAL GEOTHERMAL are each hereinafter sometimes referred to individually as "Partner" and collectively as the "Partners." ERC INTERNATIONAL and CENTENNIAL are each hereinafter sometimes referred to individually as "Parent" and collectively as "Parents." WITNESSETH: WHEREAS, CENTENNIAL GEOTHERMAL and DRAVO ENERGY, INC. ("DRAVO ENERGY") formed Heber Geothermal Company, a California general partnership, for the purpose of designing, constructing and operating a certain electrical generating station located in Heber, California; and WHEREAS, ERC ENERGY will purchase and acquire all of the issued and outstanding shares of DRAVO ENERGY and then merge into DRAVO ENERGY with DRAVO ENERGY as the surviving corporation, and through such merger DRAVO ENERGY (which simultaneously with the merger will change its name to ERC ENERGY) will succeed, by operation of law, to all of the assets and liabilities of ERC ENERGY and will continue to be a partner in Heber Geothermal Company; and WHEREAS, ERC ENERGY desires to borrow $4.2 million in order to, inter alia, purchase the shares of DRAVO ENERGY and effect the aforementioned merger and CENTENNIAL GEOTHERMAL desires to borrow $4.2 million in order to, inter alia, repay certain indebtedness owed to DRAVO ENERGY; and WHEREAS, ERC ENERGY and CENTENNIAL GEOTHERMAL desire to form a general partnership under the laws of the State of California to facilitate the above described borrowings as well as for the other purposes and on the terms and conditions stated in this Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements of the parties herein contained, ERC ENERGY and CENTENNIAL GEOTHERMAL hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Definitions. For purposes of this Agreement certain terms and provisions used herein are defined as follows: Capital Account. "Capital Account" shall mean the account established pursuant to Section 3.03 hereof. Facility. "Facility" means that certain electrical power generating station constructed by the Operating Partnership in Heber, California together with all related properties and equipment owned, leased, or otherwise controlled by-the Operating partnership from time to time and used in connection with the Operating Partnership's business. Management Committee. "Management Committee" shall mean the committee established in accordance with Article IV. Open Account. "Open Account" shall mean the account established pursuant to Section 3.04 hereof. Operating Partnership. "Operating Partnership" means Heber Geothermal Company, a California Partnership formed under and pursuant to the Operating Partnership Agreement for the purpose of constructing, developing, and operating the Facility. Operating Partnership Agreement. The term "Operating Partnership Agreement" means the amended partnership agreement entered into by and between DRAVO ENERGY and CENTENNIAL GEOTHERMAL, including all amendments thereto. Ownership Interests. The term "Ownership Interests" means all of the Partners' rights and interest in the Partnership. Partnership. The "Partnership" shall mean the partnership created by this Partnership Agreement. Partnership Agreement. The term "Partnership Agreement" or "Agreement" shall mean this agreement, as it may be amended from time to time, in writing by the Partners, together with all Exhibits hereto. ARTICLE II FORMATION OF A PARTNERSHIP Section 2.01. Formation of Partnership. ERC ENERGY and CENTENNIAL GEOTHERMAL hereby enter into and form a general partnership (the "Partnership") under the California Uniform Partnership Act (the "Act") for the purposes set forth herein. Except as expressly provided herein to the contrary, the rights and obligations of the Partners shall be governed by the Act. All real and personal property owned by the Partnership shall be held in the Partnership name and not in the names of the individual Partners, and no Partner shall have any individual ownership in such property except for its property rights as a Partner. Section 2.02. Purposes. The Partnership is intended to be a profit-making enterprise and is formed for the following limited purposes: (1) To serve as the nominal borrower of the proceeds of one or more loans for the benefit of the Partners and to lend the proceeds of such borrowings to the Partners for any purpose related to the Facility; (2) To acquire by purchase or in satisfaction of indebtedness owed to the Partnership by a Partner, or otherwise, all or a portion of a Partner's partnership interest in, and to become a partner in, the Operating Partnership; (3) To obtain all financing necessary to carry out the business of the Partnership including the power to provide a security interest in all or some of the Partnership's assets; and (4) To carry on any other activities necessary or incidental to the conduct of the Partnership business. The Partnership shall not engage in any other business or activity without the written agreement of both Partners. The Partnership is empowered to do any and all things necessary, appropriate or convenient for the furtherance and accomplishment of its purposes and for the protection and benefit of the Partnership and its properties. Section 2.03. Name and Principal Place of Business. The business of the Partnership will be conducted under the name of Heber Loan Partners ("HLP") and its principal place of business shall be at San Francisco, California. The principal place of business may be changed from time to time, and other places of business may be established by actions taken in accordance with the provisions of this Agreement that govern management of the Partnership's business and affairs. Each Partner shall execute all assumed or fictitious name certificates required by law in connection with the use of the Partnership name. Section 2.04. Term. The Partnership shall commence as of the date of this Agreement and shall continue until the happening of one of the following events, whichever is the latest to occur: (1) Except for the events referred to in Section 8.01(1), (2), (3), (4) and (5), upon notice by either Partner hereto if the other Partner shall willfully fail to perform its obligations hereunder and such failure shall continue for a period of at least three (3) months after written notice thereof from the Partner claiming such default; provided, however, that in case of a dispute as to whether or not such default exists, the time within which the Partner in default may cure such default shall not commence to run until it shall have been finally adjudicated by a court of last resort having jurisdiction that such Partner is in default; (2) Three (3) months, after the winding up of the partnership affairs of the Operating Partnership following its dissolution. (3) By mutual agreement of the Partners. ARTICLE III CAPITAL Section 3.01. Capital and Working Capital. ERC ENERGY and CENTENNIAL GEOTHERMAL shall contribute capital or working capital to the Partnership in such amounts and at such times as directed by the Management Committee. Section 3.02. Annual Division of Profit or Loss. All annual net profits or losses of the Partnership will be divided equally between ERC ENERGY and CENTENNIAL GEOTHERMAL. For purposes of crediting or charging Capital Accounts, the profit or loss of the Partnership shall be computed from the income and deductions properly reportable by the Partnership for federal income tax purposes (plus any income specifically exempted from federal income tax). Section 3.03. Capital Accounts. A Capital Account shall be established for each Partner on the books of the Partnership. There shall be credited to the Capital Account of each Partner (i) the amount of cash contributed by the Partner from time to time, (ii) the tax basis (net of liabilities assumed) of any property contributed by such Partner, and (iii) its share of profits of the Partnership as determined under Section 3.02 hereof. There shall be charged against each Partner's Capital Account (i) the amount of all distributions made by the Partnership to such Partner and (ii) its share of any losses of the Partnership as determined under Section 3.02 hereof. Section 3.04. Open Account. An individual Open Account shall be established and maintained for each Partner. Advances made by each Partner which are not capital contributions will be credited to the individual Partner's Open Account. Temporary advances of cash by the Partnership to a Partner, other than distributions from the Capital Account, shall only be made for the furtherance of the business of the Partnership and shall be charged to the Partner's Open Account. Interest on, and repayment terms and conditions for, advances, through the Open Account shall be determined by the Management Committee and no advances through the Open Account shall be made prior to such determination as to each such advance by the Management Committee. A credit balance in a Partner's Open Account shall constitute a liability of the Partnership to that Partner and shall not constitute a part of that Partner's Capital Account. A debit balance in a Partner's Open Account shall constitute an obligation of that Partner to the Partnership and shall not constitute a part of that Partner's Capital Account. Section 3.05. Distributions. (a) Partnership cash shall be allocated and distributed regularly to the Partners fifty percent (50%) to ERC ENERGY and fifty percent (50%) to CENTENNIAL GEOTHERMAL, after due allocation for the cash necessary for the operation of the Partnership business and for requirements of any Partnership indebtedness. Cash necessary for operation of the Partnership business is defined as the amount of cash necessary for thirty (30) days of normal operation to pay accounts payable, payroll, and other operating expenses (other than income taxes). (b) During any year, the Partnership may make advances on account of distributions on an interim basis, per month or per quarter. The annual cash flow budget will be revised as appropriate but no less frequently than on a quarterly basis and previous distributions during the year together with subsequent distributions will be adjusted to the proportions set forth in the revised annual cash flow budget. A final unaudited statement of cash flow for the year will be prepared and all interim cash withdrawals for that year will be adjusted to the proportions indicated on the final statement of cash flow as soon as practicable. ARTICLE IV MANAGEMENT Section 4.01. Overall Management of the Partnership. Each of the Partner's rights in the management of the business of the Partnership shall be exercised through the Management Committee in accordance with the provisions of this ARTICLE IV. The Partners shall act through a Management Committee composed of two (2) members, consisting of one (1) representative appointed by ERC ENERGY and one (1) representative appointed by CENTENNIAL GEOTHERMAL; all such appointments to be in writing and delivered one Partner to the other. Each member of the Management Committee shall have one (1) vote in all Management Committee decisions. Except as otherwise provided herein, the Management Committee will, conduct its proceedings in accordance with such rules as it may from time to time establish and will keep minutes of its meetings and the actions taken by it. Members of the Management Committee may attend meetings and vote either in person or through duly authorized proxies. Partnership action shall be governed by unanimous vote of the Management Committee. The powers and responsibilities of the Management Committee shall include, but not be limited to, action on and resolution of the following matters. (1) Amendment of this Agreement so as to affect the substantive rights or obligations of either or both Partners hereto. (2) Sales or other disposition of any asset of the Partnership the disposition of which asset would materially impair or change the conduct of the ordinary business of the Partnership as contemplated by this Agreement. (3) Termination of the Partnership otherwise than as provided for in Section 2.04 or 8.02 of this Agreement. (4) Approval of distributions of Partnership cash, subject, however, to the provisions of Section 3.05 of this Agreement. (5) A voluntary prepayment or extension of debt incurred by the Partnership in connection with the Partnership's lending of such borrowed funds to the Partners. (6) Approval of long range plans and annual capital, revenue and expense budgets and plans, including financial plans and accounting policies. (7) Authorization of any individual expenditure over $5,000 not previously approved as part of a capital budget. (8) Approval of any borrowing of money. (9) Approval to commit the credit of the Partnership, other than to trade creditors in the normal course of business. (10) Voting of the Partnership's interest in, or exercising any right of the Partnership as a partner in, the Operating Partnership. (11) Advances by the Partnership to the Partners under Section 3.04. (12) Select, remove and replace the General Manager. (13) Any other matters that the Executive Committee determines to be a power or responsibility of the Management Committee. Meetings of the Management Committee shall be held regularly but not less than quarterly, or may be called at any time by any representative or by the General Manager upon reasonable notice of the time and place of such meeting to each representative. Such notice may be waived by the written consent of the representatives of each of the Partners. Each Partner shall pay its own expenses and those of its representatives on the Management Committee. Section 4.02. Management of the Partnership. The General Manager, selected by the Executive Committee, shall have the general charge, supervision and conduct of the day-to-day operations of the Partnership. Section 4.03. General Manager. A General Manager, who shall have the responsibilities arid authorities of the chief operating officer for the Partnership, shall be appointed by the Management Committee, shall serve at the will of the Management Committee and shall be responsible to and report to the Partners. Section 4.04. Reimbursement for Employees of a Partner or Affiliate. Any employee of a Partner or its affiliate who, at the request of the Partnership, is loaned to the Operating Partnership to perform necessary services shall be paid by the Partner or affiliate by whom they are employed. The Partnership shall pay such Partner or affiliate any amounts received by the Partnership from the Operating Partnership on account of such services. In the case of personnel of a Partner performing services on a part-time basis on behalf of the Partnership, the Partnership shall reimburse such Partner for the actual costs (inclusive of direct and indirect costs and allocable overhead) which shall be determined on the basis of records reflecting the time spent in rendering services for the Partnership. ARTICLE V TAX MATTERS Section 5.01. Considered a Partnership. Heber Loan Partners is intended to be and shall constitute a "partnership" for federal income tax purposes within the meaning of Section 761(a) of the Internal Revenue Code of 1954, as amended (the "Code"), and the rules and regulations promulgated thereunder. It is agreed that the income of the Partners attributable to the Partnership taxable for federal income tax purposes shall be determined under the provisions of Subchapter K of the Code relating to taxation of partners and partnerships, or by superseding legislation, rules or regulations enacted in lieu thereof. Each Partner further agrees not to take any action or make any election not to be so treated for purposes of the Code. The Partners, acting through the Management Committee, will make common elections at the Partnership level required by or permitted under the Code. Section 5.02. Allocation of Income. All items of income, gain, loss or deduction reportable for tax purposes (as well as any tax credits arising from Partnership activity and the cost or basis of property with respect to which tax credits may be available) in any year shall be allocated for tax purposes between the Partners in the same percentages as the profits or losses of the Partnership are allocated during such year. ARTICLE VI BOOKS AND RECORDS: ACCOUNTING Section 6.01. Books. The Partnership shall maintain at the Partnership offices at the Facility accurate and complete books and records, on the accrual basis, in accordance with generally accepted accounting principles (which, having been adopted by the Management Committee, shall not be changed without mutual consent), showing all costs, expenditures, sales, receipts, assets and liabilities, and profits and losses, and all other records necessary, convenient or incidental to recording the Partnership's business and affairs. The Partnership's fiscal year shall end December 31. The books and records of the Partnership shall be open to inspection by each Partner or its designated representative at any reasonable time during business hours. Section 6.02. Records. Within ninety (90) days after the end of each fiscal year of the Partnership, the Partnership shall furnish to each of the Partners an annual report which shall include the Partnership's federal and state income tax returns which it is proposed that the Partnership shall file for that fiscal year, and unaudited statements of income, changes in financial position, and balance sheet for the fiscal year then ended and any additional information that the Partners or either of them may require. Promptly after the end of each quarter, including the last quarter of the fiscal year, there shall be prepared an unaudited balance sheet showing the Partnership's assets and liabilities at the close of the quarter and an unaudited statement of income and a cash flow statement showing the results of its operations for the quarter. Each of the Partners or their representatives upon notice in writing to the Partnership shall have the right to audit the Partnership's books and accounts for any accounting period within the 24 month period following the end of such accounting period; provided, however, the Partnership shall not be required to make any adjustments, as to any Partner, unless and to the extent that such Partner took written exception to the books and accounts and made a claim upon the Partnership for any discrepancies disclosed by said audit within such 24 month period except for claims arising from a determination of any governmental agency that any portion of such books or accounts is erroneous. The expense of all such audits conducted at the request of a Partner shall be borne by the Partner requesting the audit and shall not be an expense of the Partnership. ARTICLE VII TRANSFER OF PARTNERSHIP INTEREST Section 7.01. Restrictions on Transfer, Changes in Ownership of Partner. No Partner may at any time assign, convey, mortgage, pledge or otherwise dispose of ("transfer") all or any part of its Ownership Interest in the Partnership or interest in this Agreement, nor shall control (i.e., ownership of more than 50% of the outstanding beneficial ownership interests) of any Partner (or of any upstream entity in control of any Partner) be transferred, whether by merger, sale of assets, sale of stock, consolidation, combination or other corporate reorganization except in accordance with the right of first refusal provisions of this Article VII. In this Article VII only, the Partner (or an entity controlling the Partner, as the case may be) proposing the transfer is the "Seller," the continuing Partner is the "Buyer," and "Shares" shall mean the Ownership Interest or corporate stock to be transferred, as the case may be. Section 7.02. First Refusal Rights and Obligations. In the event of a proposed transfer of Shares as described in Section 7.01, the following provisions shall apply. (1) Notice. Seller shall notify Buyer in writing of Seller's intent to transfer Shares, which notice ("Initial Notice") will contain (1) the name and/or names of any and all parties to whom the Shares may be transferred, (ii) the price at which said Shares are intended to be sold and (iii) the terms of payment and such other terms and conditions relating to the proposed transfer as are relevant and material for purposes hereof. (2) Right to Purchase. Buyer, and/or such other party or parties as designated by Buyer, shall have the right to purchase the Shares by an additional notice sent or given to Seller not later than 30 days after Buyer's receipt of the Initial Notice. The price to Buyer, or its designate(s), of said Shares shall be equal to the proposed price and the payments and other terms shall be consistent with those stated in the Initial Notice. Seller shall not be required to sell to Buyer and/or its designates(s) less than all of the Shares covered in the Initial Notice, but may agree to do so. Notwithstanding any of the foregoing, Buyer, or any of its designate(s), shall not be obligated to make any payment for said Shares to Seller unless or until it t has received documents conveying said Shares. All incidents of ownership (including voting rights) shall be deemed to have been transferred as of the date that notice of purchase is sent or given to Seller. (3) Sale to Other(s). In the event and to the extent that the Shares covered by the Initial Notice are not so sold to Buyer and/or its designate(s) (Seller, as provided above, not being required to sell less than all of said Shares so covered to Buyer and/or its designate(s)), or if Buyer rejects, in writing, its rights to purchase said Shares, then Seller, may transfer all of said Shares (but not less than all of said Shares) to any and/or all of the parties identified in the Initial Notice (but not others) and upon the purchase price and payment and other terms set forth therein and/or as provided herein. In no event, without Buyer's written consent, shall Seller effect any such transfer upon any terms more favorable to any such other party than those set forth in the Initial Notice, and said transfer must be effected within 90 days after the earlier of (i) the expiration of the 30-day period within which Buyer may purchase the Shares as provided above, or (ii) the date when Buyer rejects, by a written notice given to Seller, its purchase rights thereto. Section 7.03. Exceptions. The foregoing Sections 7.01 and 7.02 shall not preclude either Partner from pledging or assigning distributions to be received by it from the Partnership. In addition, it shall not preclude a transfer of Ownership Interest in the Partnership by a Partner to such Partner's parent or to an entity 100% of whose equity is owned either directly or indirectly by that Partner's parent. Section 7.04. Transferees. All transferees shall execute a written instrument of express assumption pursuant to which it shall take such Shares subject to and burdened with (i) all the terms, provisions and conditions of this Agreement which should then become effective as between the transferee and the remaining Partner, and (ii) all other obligations the transferring Partner has to the Partnership, contractual or otherwise. ARTICLE VIII DEFAULTS AND REMEDIES Section 8.01. Default of a Partner. If any of the following events occur: (1) the entry of a decree or order by a court having jurisdiction in the premises adjudging a Partner or its Parent a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of Or in respect of the Partner or its Parent under the federal Bankruptcy Act or any other applicable federal or state law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Partner or its Parent or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of ninety (90) consecutive days; or (2) the institution by a Partner or its Parent of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing of a petition or answer or consent seeking reorganization or relief under the federal Bankruptcy Act or any other applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or similar official) of the Partner or its Parent or of any substantial part of its property, or the making by it of an assignment for the benefit or creditors or the admission by it in writing, of its inability to pay its debts generally as they become due, or the taking of corporate action by the Partner or its Parent in furtherance of any such action; or (3) any part of the Ownership Interest of a partner in the Partnership is seized by a creditor of such Partner, and the same is not released from seizure or bonded out within thirty (30) days from the date of notice of seizure; or (4) a Partner fails to perform any material obligation imposed upon such Partner under any agreement relating to money borrowed from the Partnership, or attempts to transfer any of its Ownership Interest in the Partnership except as otherwise provided in Section 7.01; or (5) a Partner fails to repay advances debited to its Open Account upon demand by the partnership; then such Partner shall be deemed to be in default hereunder and shall be referred to as the "Defaulting Partner," and the other Partner shall be referred to as the "Non-Defaulting Partner." The Non-Defaulting Partner shall have the right to give the Defaulting Partner a Notice of Default, which shall be in writing, shall set forth the nature of the event of default, and shall set forth the date by which such default must be cured which date shall be ninety (90) days after receipt of the Notice of Default. If within such ninety (90) day period the Defaulting Partner cures such default, the Notice of Default shall be inoperative, and the Defaulting Partner shall lose no rights hereunder. If, within such specified period the Defaulting Partner does not cure such default, the Non-Defaulting Partner at the expiration of such period shall have the rights hereinafter specified. Section 8.02. Buy-Sell Procedure at Option of Non-Defaulting Partner. If a Partner becomes a Defaulting Partner pursuant to the provisions of Section 8.01 and the -default is not cured within the specified period, then, in such event, the Non-Defaulting Partner shall have the right, at its option, to proceed under the provisions of this Section 8.02 to either: (i) expel the Defaulting Partner from the Partnership by giving written notice specifying the expulsion date and to purchase as of the expulsion date all the Defaulting Partner's Ownership Interest in the Partnership at a price which for such purposes shall be equal in amount to the Defaulting Partner's Ownership Interest in the net book value of the Partnership as determined by generally accepted accounting principles as consistently applied by the Partnership (excluding goodwill and any capital resulting from write-up of assets) as shown by the Partnership books as of the end of the calendar month preceding the date of purchase, after deducting any amounts payable to the Partnership by the Defaulting Partner, any costs or remedying the default and any damages or costs to the Partnership or Non-Defaulting Partner, including any adverse federal tax consequences suffered by the Non-Defaulting Partner, resulting from the default. Payment to the Defaulting Partner may take the form of a ten (10) year promissory note of the Non-Defaulting Partner, the principal amount of which shall be paid in ten (10) equal annual payments, with interest payable annually and in arrears and at the floating prime rate of Bank of America, San Francisco, California in effect, from time to time, but in no event in excess of the maximum rate of interest permitted by applicable law; provided, however, that the Non-Defaulting Partner shall have the option to prepay the note in whole or in part at any time without penalty or premium. In the event the Partnership or the Non-Defaulting Partner suffers liability in respect of a period prior to the expulsion of the Defaulting Partner which liability had not been accrued on the books of the Partnership on the date the purchase price of the Defaulting Partner's Ownership Interest in the net book value of the Partnership was determined, the note provided for in the preceding sentence shall be reduced by an amount equal to the Defaulting Partner's proportionate share of such liability prior to its expulsion, or the Non-Defaulting Partner may offset such an amount against any other sums owed by the Partnership to the Defaulting Partner; or (ii) cure the default arid the cost of such curing shall be charged against the Defaulting Partner's Capital Account and credited to the Non-Defaulting Partner's Capital Account. In such event, notwithstanding any provision of this Agreement to the contrary, the Ownership Interests of the Partners shall then be adjusted to reflect the relationship of the Partners' Capital Accounts to each other. The distribution of Partnership profit and loss and cash flow shall also be adjusted so that the Non-Defaulting Partner's percentage interest therein shall be increased and the Defaulting Partner's percentage interest therein decreased by the same number of percentage points or fraction of a percentage point as was their respective Ownership Interests. Such adjustments shall be made each time a default occurs and is cured by the. Non-Defaulting Partner. Adjustments to the Partners' Ownership Interests shall be carried out to the nearest one-tenth of 1%. The Defaulting Partner's liability for any obligations to or of the Partnership, other than those involved in the curing of the default, in respect of a period prior to the effective date of the curing of the default, shall not be affected. In addition to the foregoing, the Non-Defaulting Partner may, at its option, at any time within one (1)-year following the date of receipt of notice by the Partner of the uncured default, cause the Partnership to terminate any contracts existing between the Partnership and the Defaulting Partner or its Parent or any of its affiliated entities on not less than ninety (90) days written notice. The right of the Non-Defaulting Partner to proceed under this Section 8.02 shall be in addition to all other rights and remedies that the Non-Defaulting Partner may have either at law, equity, or otherwise. ARTICLE IX RESOLUTION OF DISPUTES: ARBITRATION Section 9.1. Any .dispute between the Partners arising out of the interpretation or implementation of this Agreement shall initially be reviewed and considered by the Chief Executive Officer (or his designate) of each of the Partners hereto, and in the event the Partners are unable, within a reasonable period of time to resolve their differences by such means, then the dispute shall be determined by arbitration pursuant to the then current commercial arbitration rules of the American `Arbitration Association. The request for arbitration shall be in writing, setting forth in detail `the claim or claims to be arbitrated, the amount involved, if any, and the remedy sought. It shall be delivered to the other party within ninety (90) days frost the date that discussions between the Chief Executive Officers terminated. Any failure to request arbitration within such ninety-day period shall be deemed a waiver of the right to arbitrate the dispute unless excused in writing. A board of three arbitrators shall be selected by the American Arbitration Association. The decision of not less than a majority of the arbitrators shall be final. Section 9.2. The existence of a dispute which has or may become the subject of arbitration shall in no way excuse either ERC ENERGY or CENTENNIAL GEOTHERMAL from performing its obligations under this Agreement and each of the parties hereto shall continue to perform in accordance with the terms of this Agreement irrespective of the existence of any such dispute. Section 9.3. The Partner responsible for payment of the cost of arbitration shall be determined by the' American Arbitration Association. ARTICLE X CONTRIBUTION TO PARTNERSHIP LIABILITIES; INDEMNIFICATION If either Partner pays any Partnership liability or obligation, the Partnership shall reimburse such Partner. Any payment under this Section by a Partner that is not reimbursed shall be considered a contribution to the capital of the Partnership. If the Partnership is unable to make such reimbursement, each Partner agrees to, and does hereby indemnify and save and hold harmless the other Partner, and to the extent set forth below each Affiliate and the Parent of the other Partner, from and against all claims, causes of action, liabilities, payments, obligations, expenses (including without limitation reasonable fees of and disbursements of counsel) or losses ("claims, liabilities and losses'!') arising out of a Partnership liability or obligation to the extent necessary to accomplish the result that neither Partner (together with its Affiliates and its Parent) shall bear any portion of a liability or obligation of the Partnership in any manner other than equally. Without limiting the generality of the foregoing, a claim, loss or liability shall be deemed to arise out of a Partnership liability or obligation if it arises out of, or is based upon, the conduct of the business of the Partnership or the Partnership's ownership of an interest in the Operating Partnership or any other property of the Partnership (such property being hereinafter, referred to as the "Partnership Property"). The foregoing indemnification shall be available to an Affiliate and the Parent of a Partner with respect to, a claim, liability or loss arising out of a Partnership liability or obligation which is paid by or incurred by such Affiliate or Parent as a result of such Affiliate or Parent directly or indirectly owning or controlling a Partner, or as a result of the fact that an individual employed or engaged by the Partnership or a contractor is also a director, officer, or employee of such Affiliate or Parent. The foregoing shall not inure to the benefit of any Partner (or Affiliate or Parent of any Partner) in respect of any claim, liability or loss which (1) arises out of, or is based upon, the gross negligence or willful misconduct of such Partner or the Parent or Affiliate of such Partner, (2) is a tax, levy or similar law or governmental charge not imposed upon the Partnership or upon Partnership Property, or (3) results from the breach, failure to perform or negligent performance of, any obligation of any Partner (or Affiliate or Parent of any Partner) under any contract entered into with the Partnership or on behalf of the Partnership, the Partnership reserving full right of legal recourse against each Partner and its Affiliates and Parents for breach or improper performance of such obligations. It is understood and agreed that, for the purposes of the foregoing sentence, no claim, liability or loss shall be deemed to arise out of, or be based upon, the gross negligence or willful misconduct of the Affiliate or Parent of any Partner solely by reasons of the fact that it arises out of, or is based upon, the gross negligence or willful, misconduct of a director, officer, or employee of such Affiliate or Parent, if at the time of such negligence or misconduct such director, officer or employee was employed or engaged by the Partnership as a loaned employee of the Partnership. The foregoing indemnity shall apply only to a claim, liability or loss to the extent that it is uninsured by the Partnership. ARTICLE XI DISTRIBUTION ON TERMINATION Section 11.01. Winding Up of Partnership. Upon the dissolution of the Partnership or its termination for any reason, the assets of the Partnership, after payment of liabilities, shall be converted into cash and the Capital Accounts adjusted for such sales and the proceeds distributed in the following manner: (a) All Partnership liabilities shall be paid and discharged, or adequate funds set aside for the payment and discharge thereof, all out of the Partnership's cash after sale of all assets, with either Partner having the right of first refusal, for a period of not more than 90 days from the receipt of a third party offer to purchase, to purchase such assets at the same price and on the same terms and conditions as such third party offer. In the event that the liabilities of the Partnership cannot be fully, satisfied and discharged after the sale or sales of all assets, the Partners shall assume and pay the excess equally; provided, however, that if the Capital Account of one or both of the Partners, as adjusted for such sale or sales of all assets, shall be negative, such Partner shall first contribute to the Partnership an amount equal to the negative balance of its Capital Account. Any such payment will be credited to such Partner' s Capital Account. (b) Thereafter, (i) a final examination, under United States generally accepted auditing standards, of the Partnership's financial statements prepared in accordance with United States generally accepted accounting principles shall be made by the Partnership's independent public accountants, and (ii) statements setting forth the Partners' Capital Accounts shall be prepared by such independent public accountants in accordance with Section 3.03 of this Agreement. Copies of such financial statements and statements respecting Capital Accounts shall be furnished to each Partner. The Capital Accounts subsequent to these adjustments shall be termed the "Final Capital Accounts" (c) In the event that the Final Capital Account of a Partner is negative, such Partner shall pay to the Partnership an amount equal to the negative balance in its account. The Partnership shall retain sufficient assets as a reserve to meet its obligations and contingent liabilities. It shall distribute any assets in excess of such reserve and, from time to time, such assets as are no longer needed for such reserve, to the Partners in proportion to their Final Capital Accounts. (d) The Partnership shall terminate when all property owned by the Partnership shall have been disposed of and the net proceeds, after payment or satisfaction of liabilities to Partnership creditors shall have been distributed to the Partners. (e) Notwithstanding anything herein to the contrary, the provisions of this Article XI are meant to define the respective rights and duties of the Partners and shall not give any third parties any rights against the Partners. ARTICLE XII GENERAL PROVISIONS Section 12.01. Integration. This Partnership Agreement is the entire agreement between the parties with respect to the subject matter hereof. Any prior agreements, promises, negotiations or representations inconsistent with this Agreement and not expressly set forth herein are of no force and effect. No alteration, modification, or interpretation hereof' shall be binding unless in writing and signed by the Partners. Section 12.02. Interpretation. This Partnership Agreement shall be interpreted and construed in accordance with the laws of the State of California. The titles of the Articles and Sections in this Agreement have been inserted as a matter of convenience, are for reference only, and shall not control or affect the meaning or construction of any of' the terms and provisions hereof. Section 12.03. Inspection. Each Partner or its authorized representatives, at its own expense, may examine and reproduce any of the Partnership's books or records, or may inspect the property of the Partnership at any reasonable time, and on reasonable notice. In addition, the Partnership shall, upon request, make available for examination by the Partners or their representatives, copies of all records and any and all other data relating to the operations by the Partnership which it may have available. Each Partner, at its own expense, shall be entitled to copy any such data or records. Section 12.04. Force Majeure. The respective obligations of each Partner hereto, other than the obligation to pay money, shall be suspended while it is prevented from complying therewith, in whole or in part, by weather conditions, labor accidents or incidents, rules and regulations of any federal, state, or other governmental agency, delays in transportation, inability to obtain necessary materials in the open market, or any other cause of the same or other character beyond the reasonable control of such Partner. Section 12.05. Notices. All notices, consents, requests, reports and other documents authorized or required to be given pursuant to this Agreement shall be effective when personally served upon the Partner to be given such notice at the address designated by it hereinbelow, or seventy-two (72) hours after the same shall have been deposited in the United States Mails, properly addressed, certified or registered with return receipt requested, and with postage thereon fully prepaid. Until otherwise specified by notice in writing, the addresses `for such' notice shall be: If to ERC ENERGY: ERC ENERGY, INC. c/o ERC INTERNATIONAL, INC. 3211 Jermantown Road P.O. Box 10107 Fairfax, Virginia 22030 Attention: President If to CENTENNIAL GEOTHERMAL: CENTENNIAL GEOTHERMAL, INC. 650 California Street, Suite 2250 San Francisco, CA 94108 Attention: President Any Partner may at any time by written notice to the other Partner change the address to which payment, notices, or communications shall be sent. Section 12.06. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, subject to the restrictions on assignability set forth in ARTICLE VII hereof. Section 12.07. Severability. If any provisions of this Agreement or the application thereof to any party or circumstances shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to other parties or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. IN WITNESS WHEREOF, the parties hereto have caused the Agreement to be executed and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. WITNESS: ERC ENERGY, INC. /s/ Paul B. Clemente By /s/ [Illegible] Title Vice President WITNESS: ERC ENERGY, INC. /s/ [Illegible] By /s/ [Illegible] Title Vice President EX-99.T3A84 183 exhibit_t3a-84.txt Exhibit T3A-84 ARTICLES OF ORGANIZATION Continuation Sheet 6A ARTICLE VI The other lawful provisions for the conduct and regulation of business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining or regulating the powers of the corporation, or of its directors or stockholders, or any class of stockholders, are set forth in this Article VI. a. By-Laws. The By--laws may provide that the directors may make, amend or repeal the By-laws in whole or in part, except with respect to any provision thereof which by law or the By-laws requires action by the stockholders. b. Meetings. Meetings of the stockholders of the corporation may be held anywhere in the United States. c. Acting as Partner. The corporation may be a general or limited partner or coventurer in any business enterprise it would have power to conduct by itself. d. Indemnification. The corporation may provide, either in the corporation's By-laws or by contract, for the indemnification of directors, officers, employees and agents, by whomever elected or appointed, to the full extent presently permitted by law; provided, however, that if applicable law is hereafter modified to permit indemnification in situations where it was not theretofor permitted, then such indemnification may be permitted to the full extent permitted by such law as amended. e. Transactions with Interested Persons. The By--laws may contain provisions providing that no contract or transaction of the corporation shall be void or voidable by reason of the fact that any officer, director or stockholder of the corporation may have held an interest therein. f. Division of Directors Into Classes. The By-laws may contain provisions providing for the division of directors into not more than five classes and prescribe the tenure of office of the directors in each of the classes. g. Vote Required for Certain Transactions. The vote of a majority of the outstanding shares of each class of stock outstanding and entitled to vote thereon shall be sufficient to approve any agreement of merger or consolidation of the corporation with or into another corporation or of another corporation into the corporation, or to approve any sale, lease or exchange of substantially all of the assets of the corporation, notwithstanding any provision of law that would otherwise require a greater vote in the absence of this provision of Article VI. h. Elimination of Directors' Personal Liability. No director shall be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director notwithstanding any provision of law imposing such liability; provided, however, that this provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under section sixty-one or sixty-two of chapter 156B of the Massachusetts General Laws, or (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this paragraph shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to the date of such amendment or repeal. The foregoing amendment will become effective when these articles of amendment are filed in accordance with Chapter 156B, Section 6 of The General Laws unless these articles specify, in accordance with the vote adopting the amendment, a later effective date not more than thirty days after such filing, in which event the amendment will become effective on such later date. IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our names this 13th day of July, in the year 1988 /s/ Salvatore S. Ferrara Vice President Salvatore S. Ferrara /s/ J. L. Effinger Assistant Clerk J. L. Effinger THE COMMONWEALTH OF MASSACHUSETTS ARTICLES OF AMENDMENT (General Laws, Chapter 156B, Section 72) I hereby approve the within articles of amendment and, the filing fee in the amount of $75.00 having been paid, said articles are deemed to have been filed with me this 19th day of July, 1988. /s/ Michael J. Connolly MICHAEL JOSEPH CONNOLLY Secretary of State TO BE FILLED IN BY CORPORATION PHOTO COPY OF AMENDMENT TO BE SENT TO: C T CORPORATION SYSTEM 2 Oliver Street Boston, Massachusetts Telephone (617) 482-4420 Copy Mailed FEDERAL IDENTIFICATION No. 133375647 The Commonwealth of Massachusetts William Francis Galvin Secretary of the Commonwealth One Ashburton Place, Boston Massachusetts 02108-1512 ARTICLES OF AMENDMENT (General Laws, Chapter 156B, Section 72) Anthony Orlando We, __________________, Vice President, Patricia M. Collins and _____________________, Assistant Clerk, OGDEN MARTIN SYSTEMS OF HAVERHILL, INC. of _________________________________________, (Exact name of corporation) c/o Corporation Service Company, 84 State Street, Boston, MA 02109 located at ___________________________________, (Street address of corporation in Massachusetts) certify that these Articles of Amendment affecting articles numbered: Article First is amended to read: First: The name of the corporation is COVANTA HAVERHILL, INC. (Number those articles 1, 2, 3, 4, 5 and/or 6 being amended) of the Articles of Organization were duly adopted at a meeting held on February 28th, 2001, by vote of: 100 common 100 shares of of shares outstanding, - ------- ---------------- ------ (type, class & series, if any) shares of of shares outstanding, - ------- ---------------- ------ (type, class & series, if any) shares of of shares outstanding, - ------- ---------------- ------ (type, class & series, if any) 2 ** being at least two-thirds of each type, class or series outstanding and entitled to vote thereon and of each type, class or series of stock whose rights are adversely affected thereby: *Delete the inapplicable words. **Delete the inapplicable clause. 1 For amendments adopted pursuant to Chapter 156B, Section 70. 2 For amendments adopted pursuant to Chapter 156B, Section 71. Note: If the space provided under any article or item on this form is insufficient, additions shall be set forth on one side only of separate 8 1/2 x 11 sheets of paper with a left margin of at least 1 inch. Additions to more than one article may be made on a single sheet so long as each article requiring such addition is clearly indicated. To change the number of shares and the par value (if any) of any type, class or series of stock which the corporation is authorized to issue, fill in the following: The total presently authorized is: WITHOUT PAR VALUE STOCKS | WITH PAR VALUE STOCKS TYPE NUMBER OF SHARES | TYPE NUMBER OF SHARES PAR VALUE Common: | Common: | Preferred: | Preferred: | Change the total authorized to: no change WITHOUT PAR VALUE STOCKS | WITH PAR VALUE STOCKS TYPE NUMBER OF SHARES | TYPE NUMBER OF SHARES PAR VALUE Common: | Common: | Preferred: | Preferred: | The foregoing amendment(s) will become effective when these Articles of Amendment are filed in accordance with General Laws, Chapter 156B, Section 6 unless these articles specify, in accordance with the vote adopting the amendment, a later effective date not more than thirty days after such filing, in which event the amendment will become effective on such later date. Later effective date: _______________________. SIGNED UNDER THE PENALTIES OF PERJURY, this 1st day of March, 2001, /s/ [A. Orlando] Executive , *President / *Vice President, /s/ [Patricia Collins] , *Clerk / *Assistant Clerk *Delete the inapplicable words. THE COMMONWEALTH OF MASSACHUSETTS ARTICLES OF AMENDMENT (General Laws, Chapter 156B, Section 72) ================================================================================ I hereby approve the within Articles of Amendment and, the filing fee in the amount of $100 having been paid, said articles are deemed to have been filed with me this 14th day of March 2001. ================================================================================ Effective date: /s/ William Francis Galvin WILLIAM FRANCIS GALVIN Secretary of the Commonwealth TO BE FILLED IN BY CORPORATION Photocopy of document to be sent to: Telephone [illegible:][50M C.C.ARO-3 (Rev. 4/85) 803431] Note: If the space provided under any article or item on this form is insufficient, additions shall be set forth on separate 8 1/2 x 11 sheets of paper leaving a left hand margin of at least 1 inch for binding. Additions to more than one article may be continued on a single sheet so long as each article requiring each such addition is clearly indicated. (MASS. - 1635 - 3/12/86) [New York #1257586 v2] NOTE: ONCE DOCUMENT IS ACCEPTED AND FILED, CHANGES MUST BE BY AMENDMENT OR CERTIFICATE OF CHANGE ONLY The Commonwealth of Massachusetts OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE MICHAEL JOSEPH CONNOLLY, Secretary ONE ASHBURTON PLACE, BOSTON, MASS. O2108 ARTICLES OF ORGANIZATION (Under G.L. Ch. 156B) Incorporators NAME POST OFFICE ADDRESS Include given name in full in case of natural persons; in case of a corporation, give state of incorporation. Guy M. Bowman 1633 Broadway, New York, NY 10019 Eileen Horan 1633 Broadway, New York, NY 10019 Karen Kojalowicz 1633 Broadway, New York, NY 10019 The above-named incorporator(s) do hereby associate (themselves) with the intention of forming a corporation under the provisions of General Laws, Chapter 156B and hereby state(s): 1. The name by which the corporation shall be known is: OGDEN MARTIN SYSTEMS OF HAVERHILL, INC. 2. The purpose for which the corporation is formed is as follows: To engage in the operation of a solid waste to energy plant and to engage in any other lawful act or activity associated therewith. 3. The total number of shares and the par value, if any, of each class of stock within the corporation is authorized as follows: - -------------------------------------------------------------------- | |WITHOUT PAR VALUE| WITH PAR VALUE | | |---------------------------------------------------| |CLASS OF STOCK| | | PAR | | | |NUMBER OF SHARES |NUMBER OF SHARES|VALUE| AMOUNT | |--------------|-----------------|----------------|-----|----------| | Preferred | | | | $ | |--------------|-----------------|----------------|-----|----------| | | | | | | |--------------|-----------------|----------------|-----|----------| | Common | | 100 |$1.00| $100 | - -------------------------------------------------------------------- *4. If more than one class is authorized, a description of each of the different classes of stock with, if any, the preferences, voting powers, qualifications, special or relative rights or privileges as to each class thereof and any series now established: None *5. The restrictions, if any, imposed by the Articles of Organization upon the transfer of shares of stock of any class are as follows: None *6. Other [illegible] provisions, if any, for the conduct and regulation of business and affairs of the corporation, for its voluntary dissolution and for [illegible]ing, defining, or regulating the powers of the corporation, or of its directors or stockholders, or of any class of stockholders. Meetings of stockholders of the corporation may may be held anywhere in the United States. The By-Laws may provide that the directors may make, amend or repeal the By-Laws in whole or in part, except with respect to any provision thereof [illegible] Articles of Organization, or the By-Laws [illegible] by the stockholders. [illegible] None" 7. By-laws of the corporation have been duly adopted and the initial directors, president, treasurer and clerk, whose names are set out below, have been duly elected. 8. The effective date of organization of the corporation shall be the date of filing with the Secretary of the Commonwealth or, if later date is desired, specify date. (not more than 30 days after the date of filing.) 9. The following information shall not for any purpose be treated as a permanent part of the Articles of Organization of the corporation. a. The post office address of the initial principal office of the corporation of Massachusetts is: c/o C T Corporation System, 2 Oliver Street, Boston, MA 02109 b. The name, residence, and post office address of each of the initial directors and following officers of the corporation are as follows: NAME RESIDENCE POST OFFICE ADDRESS President: David L. Sokol 3 Country Lane Westport, CT 06880 Treasurer: James M. Russo 239 Phelps Rd., Ridgewood, NJ 07450 Clerk: Bruce W. Stone 361 Hayward Ave., Mt. Vernon, NY 10552 Directors: Donald A. Krenz 6 Country Lane, Westport, CT 06880 Salvatore S. Ferrara 210 Winding Way, Morrisville, PA 19067 Robert E. Curry, Jr. 429 Chestnut Land, New Milford, CT 06776 James M. Russo 239 Phelps Rd., Ridgewood, NJ 07450 David L. Sokol 3 Country Lane, Westport, CT 06880 c. The data initially adopted on which the corporation's fiscal year ends is: 12--31 d. The date initially fixed in the by-laws for the annual meeting of stockholders of the corporation is: e. The name and business address of the resident agent, if any, of the corporation is: C T CORPORATION SYSTEM, 2 Oliver Street, Boston, Massachusetts 02109. IN WITNESS WHEREOF and under the penalties of perjury the INCORPORATOR(S) sign(s) these Articles of Organization this 31 day of October 1986 /s/ Guy M. Bowman Guy M Bowman /s/ Karen Kojalowicz Karen Kojalowicz /s/ Eileen Horan Eileen Horan The signature of each incorporator which is not a natural person must be an individual who shall show the capacity in which he acts and by signing shall represent under the penalties of perjury that he is duly authorized on its behalf to sign these Articles of Organization. THE COMMONWEALTH OF MASSACHUSETTS ARTICLES OF ORGANIZATION GENERAL LAWS, CHAPTER 156B, SECTION 12 ================================================================================ I hereby certify that, upon an examination of the within-written articles of organization, duly submitted to me, it appears that the provisions of the General Laws relative to the organization of corporations have been complied with, and I hereby approve said articles; and the filing fee in the amount of $150.00 having been paid, said articles are deemed to have been filed with me this 3rd day of November 1986 Effective date /s/ Michael J. Connolly MICHAEL JOSEPH CONNOLLY Secretary of State PHOTO COPY OF ARTICLES OF ORGANIZATION TO BE SENT TO BE FILLED IN BY CORPORATION TO: C T Corporation System 2 Oliver Street Boston, Massachusetts Telephone 482-4420 FILING FEE: 1/20 of 1% of the total amount of the authorized capital stock with par value, and one cent a share for all authorized shares without par value, but not less than $150 General Laws, Chapter 156B. Shares of stock with a par value less than one dollar shall be deemed to have par value of one dollar per share. Copy Mailed EX-99.T3A87 184 exhibit_t3a-87.txt Exhibit T3A-87 ARTICLES OF INCORPORATION OF TRANS ENERGY - OREGON, INC. I, the undersigned, incorporator, for the purpose of forming a corporation under the laws of the state of Oregon, do hereby state: ARTICLE I. The name of the corporation is Trans Energy-- Oregon, Inc., and its duration shall be perpetual. ARTICLE II. The purpose of this corporation is to engage in any lawful activity for which a corporation may be organized under the laws of the state of Oregon. ARTICLE III. The registered office for the transaction of the business of the corporation is to be located at 300 Pioneer Trust Building, Salem, Oregon 97301, and the name of its registered agent at that address is David A. Rhoten. ARTICLE IV. The shares of this corporation shall be classified as "common" shares; the total number of shares that the corporation is authorized to issue is 1,000 shares of no par value. All of such shares shall have full voting rights, one vote to each share. No distinction shall exist between the shares of the corporation or between the holders thereof. ARTICLE V. There shall be as many directors as there are shareholders but no more than three directors. The names and addresses of the persons appointed to act as the first directors are: George Sutherland York Center Redmond, Washington 98052 Bernard Beckelman York Center Redmond, Washington 98052 William W. Smith York Center Redmond, Washington 98052 ARTICLE VI. The name and address of each incorporator is: David A. Rhoten 300 Pioneer Trust Building Salem, Oregon 97301 ARTICLE VII. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting if all members of the Board shall, individually or collectively, consent in writing to such action. Such written consent shall have the same force and effect as the unanimous vote of such directors. I, the undersigned incorporator, declare under penalties of perjury that I have examined the foregoing and to the best of my knowledge and belief, it is true, correct, and complete. IN WITNESS WHEREOF, I have hereunto set my hand this 4th day of November, 1982. /s/ David A. Rhoten David A. Rhoten Incorporator STATE OF OREGON DEPARTMENT OFCOMMERCE CORPORATION DIVISION Articles of Amendment Pursuant to the provisions of ORS 57.370, the undersigned corporation executes the following Articles of Amendment to Its Articles of Incorporation: 1. The name of the corporation prior to this amendment is: Trans Energy-Oregon. Inc. 2. The following amendment of the Articles of Incorporation was adopted by the shareholders on September 14, 1984 (State article number(s) and set forth article(s) in full as will be amended to read.) Article I of the Company's Articles of Incorporation is amended to read: "The name of this corporation is: OGDEN MARTIN SYSTEMS OF MARION, INC. and its duration shall be perpetual." Article V of the Company's Articles of Incorporation V is amended to read: "The number of directors constituting the board of directors of the corporation shall be not less than three and not more than six." The following article is added as Article VIII of the Company's Articles of Incorporation: "No shareholder of the corporation shall have a preemptive right to acquire its unissued or treasury shares or securities convertible into such shares or carrying a right to subscribe to or acquire such shares." 3. The total number of shares which, at time of adoption of amendment were outstanding 10: entitled to vote thereon 10; voted for amendment: 10; voted against amendment: 0. 4. If the shares of any class were entitled to vote on such amendment as a class, designate the outstanding shares entitled to vote thereon and the number of shares of each such class voted (or and against such amendment as follows: N/A Number of Shares Class Outstanding and Number of Shares Voted Entitled to Vote For Against 5. If amendment provides for an exchange, reclassification or cancellation of issued shares, and the manner ins which the same shall be effected is not otherwise set forth herein, the exchange, reclassification or cancellation shall be effected as follows: N/A 6. If amendment effects a change in amount. of stated capital, the amount of stated capital as changed is _______________ Change effected as follows: N/A We, the undersigned officers, declare under the penalties of perjury that we have examined the foregoing and to the best of our knowledge and belief it is true, correct and complete. Trans Energy-Oregon, Inc. Name of Corporation by s/sDouglas Huxtable and /s/ Kevin P. Teisman --------------------------- Douglas D. Huxtable Kevin P. Teismann President Secretary (Title of Officer) (Title of Officer) Dated September 14m 1984 File with Corporation Commissioner, Commerce Bldg., 158 12th St, N.E., Salem, Oregon 97310. Articles of Amendment -- Business/Professional/Nonprofit Registry Number: 164271-14 Attach Additional Sheet if Necessary Please Type or Print Legibly in Black Ink 1) Name of Corporation Prior to Amendment: OGDEN Martin Systems of Marion, Inc. 2) State the Article Number(s) and set forth the Article(s) as it is Amended to Read (Attach a separate sheet if necessary. Article First is amended to read: First: The name of the corporation is COVANTA MARION, INC. 3) The Amendment was adopted on February 28, 2001 (If more than one amendment was adopted, identify the date of each amendment.) Business/Professional Corporation Only 4) Check the Appropriate Statement x Shareholder action was required to adopt the amendment(s). The vote was as follows: Class or series of shares: Common Number of shares outstanding: 100 Number of Votes entitled to be cast: 100 Number of Votes cast for: 100% Number of Votes cast against: 0 Shareholder action was not required to adopt the amendments(s). The amendment(s ) was adopted by the board of directors without shareholder action. The corporation has not issued any shares of stock. Shareholder action was not required to adopt the amendment(s). The amendments was adopted by the incorporation or by the board of directors. Non Profit Corporation Only 5) Check the Appropriate Statement Membership approval was not required. The amendment(s) was approved by a sufficient vote of the board of directors or incorporators. Membership approval was required. The membership vote was as follows: Cases entitled to vote Number of members entitled to vote Number of votes entitled to be cast Number of votes cast FOR Number of votes cast AGAINST 6) Execution Printed Name Signature Title Patricia Collins /s/ Patricia Collins Asst. Secretary 7) Contact Name Elva Shipkowski (CSC) Daytime Phone Number Including Area Code 302-636-5401 ext. 3216 EX-99.T3A88 185 exhibit_t3a-88.txt Exhibit T3A-88 -------------- CERTIFICATE OF INCORPORATION OF CITICORP OMNI LEASE, INC. FIRST. The name of the Corporation is Citicorp Omni Lease, Inc. SECOND. The address of its registered office in the State of Delaware is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. THIRD. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. Without limiting in any manner the scope and generality of the foregoing, the Corporation shall have the following purposes and powers: (1) To acquire by purchase, subscription, or otherwise, and to receive hold, own, guarantee (to the extent permitted by law), sell, assign, exchange, transfer, mortgage, pledge, or otherwise dispose of or deal in and with any and all securities, as such term is hereinafter defined, issued or created by any corporation, firm, organization, association or other entity, public or private, whether formed under the laws of the United States of America or of any state, commonwealth, territory, dependency or possession thereof, or of any foreign country or of any political subdivision, territory, dependency, possession or municipality thereof, or issued or created by the United States of America or any state or commonwealth thereof or any foreign country, or by any agency, subdivision, territory, dependency, possession or municipality of any of the foregoing, and as owner thereof to possess and exercise all the rights, powers and privileges of ownership, including the right to execute consents and vote thereon. The term "securities" as used in this Certificate of Incorporation shall mean any and all notes, stocks, treasury stocks, bonds, debentures, evidences of indebtedness, certificates of interest or participation in any profit-sharing agreement, collateral-trust certificates, preorganization certificates of deposit for a security, fractional undivided interests in oil, gas, or other mineral rights, or, in general any interests or instruments commonly known as "securities", or any and all certificates of interest or participation in, temporary or interim certificates for, receipts for, guarantees of, or warrants or rights to subscribe to or purchase, any of the foregoing. (2) To make, establish and maintain investments in securities, and to supervise and manage such investments. (3) To cause to be organized under the laws of the United States of America or of any state, commonwealth, territory, dependency or possession thereof, or of any foreign country or of any political subdivision, territory, dependency, possession or municipality thereof, one or more corporations, firms, organizations, associations or other entities and to cause the same to be dissolved, wound up, liquidated, merged or consolidated. (4) To acquire by purchase or exchange, or by transfer to or by merger or consolidation with the Corporation or any corporation, firm, organization, association or other entity directly or indirectly owned or controlled by, or under common ownership or control with, the Corporation, or to otherwise acquire, the whole or any part of the business, good will, rights, or other assets of any corporation, firm organization, association or other entity, and to undertake or assume in connection therewith the whole or any part of the liabilities and obligations thereof, to effect any such acquisition in whole or in part by delivery of cash or other property, including securities is sued by the Corporation or by any other corporation directly or indirectly owning or controlling the Corporation, or by any other lawful means. (5) To make loans and give other forms of credit with or without security, and to negotiate and make contracts and agreements in connection therewith. (6) To aid by loan, subsidy, guaranty or in any other lawful manner any corporation directly or indirectly owning or controlling the Corporation or any corporation, firm, organization, association or other entity of which any securities are in any manner directly or indirectly held by the Corporation or by any such owning or controlling corporation or in which the Corporation, any such owning or controlling corporation or any such corporation, firm, organization, association or entity may be or become otherwise interested; to guarantee the payment of dividends on any stock issued by any such owning or controlling corporation or any such corporation, firm organization, association or entity; to guarantee or, with or without recourse against any such owning or controlling corporation or any such corporation, firm, organization, association or entity, to assume the payment of the principal of, or the interest on, any obligations issued or incurred by such owning or controlling corporation or such corporation, firm, organization, association or entity; to do any and all other acts and things for the enhancement, protection or preservation of any securities which are in any manner, directly or indirectly, held, guaranteed or assumed by the Corporation or by any such owning or controlling corporation, and to do any and all acts and things designed to accomplish any such purpose. (7) To borrow money for any business, object or purpose of the Corporation from time to time, without limit as to amount; to issue any kind of indebtedness, whether or not in connection with borrowing money, including evidences of indebtedness convertible into stock of the Corporation or of any other corporation directly or indirectly owning or controlling the Corporation, to secure the payment of any evidence of indebtedness by the creation of any interest in any of the property or rights of the Corporation, whether at that time owned or thereafter acquired. (8) To the extent permitted by law, to render service, assistance, counsel and advice to, and to act as representative or agent in any capacity (whether managing, operating, financial, purchasing, selling, advertising or otherwise) of, any individual, corporation, firm, organization, association or other entity. (9) To manufacture, purchase or otherwise acquire, hold, own, develop, operate, mortgage, lease as lessor or lessee, license the use of, as licensor or licensee, transfer and grant franchises, options and rights in respect of, service, repair maintain, sell, assign, exchange, mortgage, pledge, or otherwise dispose of or deal in and with, in any lawful capacity, goods, wares, merchandise, and real and personal property of every class and description, wherever located or used: to render any and all services in connection therewith, and, in general, to operate and conduct a general leasing and rental business. (10) To engage in any commercial, financial, mercantile, industrial, manufacturing, marine, exploration, mining, agricultural, research, licensing, servicing, or agency business not prohibited by law, and any, some or all of the foregoing. The purpose and powers specified In the foregoing paragraphs shall, except where otherwise expressed, be in nowise limited or restricted by reference to, or inference from, the terms of any other paragraph in this Certificate of Incorporation, but the purposes and powers specified in each of the foregoing paragraphs of this Article shall be regarded as independent purposes and powers. The Corporation shall possess and may exercise all powers and privileges necessary or convenient to effect any or all of the foregoing purposes, or to further any or all of the foregoing powers, and the enumeration herein of any specific purposes or powers shall not be held to limit or restrict in any manner the exercise by the Corporation of the general powers nor or hereafter conferred by the laws of the State of Delaware upon corporations formed under the General Corporation Law of Delaware. FOURTH. The total number of shares of capital stock which the Corporation shall have authority to issue is ONE THOUSAND (1,000) SHARES of Common Stock of the par value of ONE DOLLAR ($1.00) per share. Any amendment to the Certificate of incorporation which shall increase or decrease the authorized capital stock of the Corporation may be adopted by the affirmative vote of the holders of a majority of the outstanding shares of the voting stock of the Corporation. FIFTH. The by-laws may be made, altered, amended or repealed by the Board of Directors. The books of the Corporation (subject to the provisions of the laws of the State of Delaware) may be kept outside of the State of Delaware at such places as from time to time may be designated by the Board of Directors. SIXTH. Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority or number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as-the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as consequence of such compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of stockholders, of this Corporation, as the case may be, and also on this Corporation. SEVENTH. (1) The Corporation shall indemnify any person who was or is a party or is threatened to be-made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director or officer of the Corporation, against expenses (including attorneys' fees), Judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nole contendere or its equivalent, shall not, of itself, create a presumption that the person did not act In good faith and in a manner which he reasonable believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (2) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the Corporation, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper. (3) The Corporation may indemnify any person who is or was an employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise to the extent and under the circumstances provided by paragraphs 1 and 2 of this Article SEVENTH with respect to a person who is or was a director or officer of the Corporation. (4) Any indemnification under paragraphs 1, 2 and 3 of this Article SEVENTH (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he has met the applicable standard of conduct set forth therein. Such determination shall be made (a) by the Board of Directors by a majority vote of a quorum (as defined in the by-laws of the Corporation), consisting of directors who were not parties to such action, suit or proceeding, or (b) if such quorum Is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (c) by the stockholders. (5) Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors of the Corporation in the manner provided in the next preceding paragraph upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Article SEVENTH. (6) The indemnification provided by this Article SEVENTH shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any statute, by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (7) By action of its Board of Directors, notwithstanding any interest of the directors in the action, the Corporation may cause to be purchased and maintained insurance, in such amounts as the Board of Directors deems appropriate, on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or of any corporation a majority of the voting stock of which is owned by the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power or would be required to indemnify him against such liability under the provisions of this Article SEVENTH or of the General Corporation Law of the State of Delaware. EIGHTH. Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken for or in connection with any corporate action by any provision of the General Corporation Law of the State of Delaware the meeting and vote of stockholders may be dispensed with if such action is taken with the written consent of the holders or not less than a majority of all the stock entitled to be voted upon such action if a meeting were held; provided that in no case shall the written consent be by the holders of stock having less than the minimum percentage of the vote required by statute for such action, and provided that prompt notice is given to all stockholders of the taking of corporate action without a meeting and by less than unanimous written consent. Election of directors need not be by ballot unless the by--laws so provide. NINTH. The name and mailing address of the single incorporator is as follows: Name Address Christopher C. York 399 Park Avenue New York, New York 10022 TENTH. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. THE UNDERSIGNED, being the sole incorporator hereinabove named-, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does make this Certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 18th day of January 1980. /s/ Christopher C. York [ FILED June 5, 1980 AMENDMENT OF CERTIFICATE OF INCORPORATION BEFORE PAYMENT OF CAPITAL OF CITICORP OMNI LEASE, INC. The undersigned, being the sole incorporator of Citicorp Omni Lease, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware. DOES HEREBY CERTIFY: FIRST: That Article First of the certificate of Incorporation be and it hereby is amended to read as follows: "FIRST. The name of the corporation is CITICORP OMEGA LEASE, INC." SECOND: That the corporation has not received any payment for any of its stock. THIRD: That the amendment was duly adopted in accordance with the provisions of Section 241 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, the undersigned has signed this certificate on this 30th day of May, 1980. /s/ Christopher C. York CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION CITICORP OMEGA LEASE, INC., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That at a meeting of the Board of Directors of Citicorp Omega Lease, Inc. resolutions were duly adopted setting forth a proposed amendment of the Certificate of incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows: RESOLVED, that the Certificate of Incorporation of this corporation be amended by changing the Article thereof numbered "FIRST" so that, as amended said Article shall be and read as follows: "FIRST: The name of the Corporation is OGDEN OMEGA LEASE, INC. SECOND: That thereafter, pursuant to resolution of its Board of Directors a special meeting of the stockholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation law of the state of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation shall not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Citicorp Omega Lease, Inc. has caused this certificate to be signed by David L. Sokol, its President, and Bruce W. Stone, its Secretary, this 5th day of February, 1987. BY: /s/ President ATTEST: /s/ Bruce W. Stone Secretary CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is OGDEN OMEGA LEASE, INC. 2. The registered office of the corporation within the State of Delaware is hereby changed to 1013 Centre Road, City of Wilmington 19805, County of New Castle. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 1/15, 1996 /s/ Authorized Officer CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF OGDEN OMEGA LEASE, INC. It is hereby certified that: 1. The name of the corporation (hereinafter the "corporation") is OGDEN OMEGA LEASE, INC. 2. The certificate of incorporation of the corporation is hereby amended by striking out Article One thereof and by substituting in lieu of said Article the following new Article: Article One: The name of the corporation (hereinafter called the "corporation") is COVANTA OMEGA LEASE, INC. 3. The amendment of the certificate of incorporation herein certified has been duly adopted in accordance with the provision of Section 242 and 228 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, I have duly executed this certificate of amendment this 14th day of March ________, 2001. /s/ Name: Patricia Collins Title: Asst. Secretary -----END PRIVACY-ENHANCED MESSAGE-----