EXHIBIT 3.77
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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
FOR
ORGANIC WASTE TECHNOLOGIES, INC.
(Pursuant to Section 245)
(Originally incorporated July 5, 1989)
ARTICLE I
NAME
The name of the corporation is:
ORGANIC WASTE TECHNOLOGIES, INC.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The address for the corporation's registered office in the State of
Delaware is 1209 Orange Sweet, Wilmington, New Castle County, Delaware. The name
of its registered agent at such address is The Corporation Trust Company.
ARTICLE III
PURPOSES
The purposes for which the corporation is organized are:
To transact any business and to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of
Delaware, as amended, or which may be authorized in the future by amendment
thereto.
ARTICLE IV
CAPITAL STOCK
Capitalization. The corporation shall have the authority to issue Four
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Million Six Hundred Fifty-Eight Thousand Five Hundred Nineteen (4,658,519)
shares, all of which shall be designated Common Stock, par value $.0l per share
(the "Common Stock"). Fully paid stock of this corporation of any class shall
not be liable for further call or assessment. The authorized shares of each
class shall be issued at the discretion of the Directors. Each share of Common
Stock shall be equal to every other share of Common Stock. Each outstanding
share of Common Stock of the corporation shall be entitled to one vote on each
matter submitted to a vote at the meeting of the stockholders. Each holder of
shares of Common Stock shall be entitled to vote his or its shares in person or
by proxy, executed in writing by such stockholder, or by his duly authorized
attorney-in-fact. At each election of directors, every stockholder entitled to
vote in such election shall have the right to vote, in person or by proxy, the
number of shares owned by him or it for as many persons as there are Directors
to be elected and for whose election he or it
has the right to vote, but the stockholder shall have no right to accumulate his
or its votes with regard to such election.
ARTICLE V
Article V is intentionally left blank.
ARTICLE VI
Article VI is intentionally left blank.
ARTICLE VII
The period of duration of the corporation is perpetual.
ARTICLE VIII
ELECTION OF DIRECTORS
Elections of directors of the corporation need not be by written ballot
unless the By-Laws of the corporation shall so provide.
ARTICLE IX
MEETINGS OF SHAREHOLDERS
Meetings of shareholders of the corporation may be held within or outside
of the State of Delaware, as the By-Laws of the corporation may provide.
ARTICLE X
PERSONAL LIABILITY OF DIRECTORS
The corporation eliminates the personal liability of each member of its
board of directors to the corporation or its stockholders for monetary damages
for breach of fiduciary duty a director, provided that the foregoing shall not
eliminate the liability of a director (i) for any breach of such 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 Title 8 of the Delaware Code or (iv) for any
transaction from which such director derived an improper personal benefit.
ARTICLE XI
INDEMNIFICATION
(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 or she 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,
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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 or she acted in good faith and in a manner
he or she 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 that 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 or she 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 or her 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 or she 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 attorney's
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 or she 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 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
or such other court shall deem proper.
(c) To the extent that any person described in subsection (a) and (b) of
this Article XI has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in said subsections, or in defense of any
claim, issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith
(d) Any indemnification under subsections (a) and (b) of this Article XI
(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 or she has
met the applicable standard of conduct set forth in subsections (a) and (b) of
this Article XI. 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 an officer or director in defending a civil or
criminal action, suit or proceeding may be paid by the corporation in advance of
the final disposition of such
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action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall be ultimately be
determined that he or she is not entitled to be indemnified by the corporation
as authorized in this Article XI. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this Article XI shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law, 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.
(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,
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 XI.
(h) The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article XI shall, unless otherwise provided when authorized or
ratified, 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.
(i) If any word, clause or provision of this Article XI or any aware made
hereunder shall for any reason be determined to be invalid, the provisions
hereof, shall not otherwise be affected thereby but shall remain in full force
and effect.
(j) The intent of this Article XI is to provide for the indemnification and
advancement of expenses to the fullest extent permitted by Section 145 of the
General Corporation Law of Delaware. To the extent that such Section or any
successor section may be amended or supplemented from time to time, this Article
XI shall be amended automatically and construed so as to permit indemnification
and advancement of expenses to the fullest extent from time to time permitted by
law.
ARTICLE XII
AMENDMENTS
The corporation reserves the right to amend, alter, change or repeal any
provision contained in this Amended and Restated Certificate of Incorporation,
in the manner now or hereafter prescribed by the Delaware statutes, and all
rights conferred upon shareholders herein are granted subject to this
reservation.
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