EXHIBIT 3
CERTIFICATE OF INCORPORATION
OF
THERMO REMEDIATION INC.
* * * * * * *
FIRST: The name of the corporation is:
Thermo Remediation Inc.
SECOND: The address of its 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 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 capital stock
which the corporation shall have authority to issue is
twenty million (20,000,000), and the par value of each of
such shares is one cent ($0.01), amounting in the aggregate
to two hundred thousand dollars ($200,000.00) of capital
stock.
FIFTH: The name and mailing address of the sole
incorporator is as follows:
NAME MAILING ADDRESS
Barbara J. Lucas 81 Wyman Street
Waltham, Massachusetts 02254
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:
PAGE
NAME MAILING ADDRESS
---- ---------------
John P. Appleton 81 Wyman Street
Waltham, Massachusetts 02254
John N. Hatsopoulos 81 Wyman Street
Waltham, Massachusetts 02254
Fred Holubow 2 N. LaSalle Street
Suite 605
Chicago, Illinois 60603
Theo Melas-Kyriazi 81 Wyman Street
Waltham, Massachusetts 02254
William A. Rainville 81 Wyman Street
Waltham, Massachusetts 02254
SEVENTH: The corporation is to have perpetual
existence.
EIGHTH: The private property of the stockholders shall
not be subject to the payment of the corporation debts to
any extent whatever.
NINTH: The following provisions are inserted for the
management of the business and for the conduct of the
affairs of the corporation and for defining and regulating
the powers of the corporation and its directors and
stockholders and are in the furtherance and not in
limitation of the powers conferred upon the corporation by
statute:
(a) The by-laws of the corporation may fix and
alter, or provide the manner for fixing and altering,
the number of directors constituting the whole Board.
In case of any vacancy on the Board of Directors or any
increase in the number of directors constituting the
whole Board, the vacancies shall be filled by the
directors or by the stockholders at the time having
voting power, as may be prescribed in the by-laws.
Directors need not be stockholders of the corporation,
and the election of directors need not be by ballot.
(b) The Board of Directors shall have the power
and authority:
(1) to make, alter or repeal by-laws of the
corporation, subject only to such limitation, if
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any, as may be from time to time imposed by law or
by the by-laws; and
(2) to the full extent permitted or not
prohibited by law, and without the consent of or
other action by the stockholders, to authorize or
create mortgages, pledges or other liens or
encumbrances upon any or all of the assets, real,
personal or mixed, and franchises of the
corporation, including after-acquired property,
and to exercise all of the powers of the
corporation in connection therewith; and
(3) subject to any provision of the by-laws,
to determine whether, to what extent, at what
times and places and under what conditions and
regulations the accounts, books and papers of the
corporation (other than the stock ledger), or any
of them, shall be open to the inspection of the
stockholders, and no stockholder shall have any
right to inspect any account, book or paper of the
corporation except as conferred by statute or
authorized by the by-laws or by the Board of
Directors.
TENTH: Meetings of stockholders may be held outside
the State of Delaware, if the by-laws so provide. The books
of the corporation may be kept outside of 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.
ELEVENTH: The corporation shall indemnify each
director and officer of the corporation, his heirs,
executors and administrators, and may indemnify each
employee and agent of the corporation, his heirs, executors,
administrators and all other persons whom the corporation is
authorized to indemnify under the provisions of the General
Corporation Law of the State of Delaware, to the maximum
extent permitted by law (a) against all expenses (including
attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in
connection with any action, suit or proceeding, whether
civil, criminal, administrative or investigative (except an
action by or in the right of the corporation), or in
connection with any appeal therein, or otherwise, and (b)
against all expenses (including attorney's fees) actually
and reasonably incurred by him in connection with the
defense or settlement of any action or suit by or in the
right of the corporation, or otherwise; and no provision of
this Article Eleventh is intended to be construed as
limiting, prohibiting, denying or abrogating any of the
general or specific powers or rights conferred by the
General Corporation Law of the State of Delaware upon the
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corporation to furnish, or upon any court to award, such
indemnification, or indemnification as otherwise authorized
pursuant to the General Corporation Law of the State of
Delaware or any other law now or hereafter in effect.
The Board of Directors of the corporation may, in its
discretion, authorize the corporation 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 or 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 foregoing
paragraph of this Article Eleventh.
TWELFTH: To the maximum extent that Delaware law in
effect from time to time permits limitation of the liability
of directors, no director of the corporation shall be liable
to the corporation or its stockholders for money damages.
Neither the amendment nor repeal of this Article, nor the
adoption or amendment of any other provision of the
corporation's Certificate of Incorporation or by-laws
inconsistent with this Article, shall apply to or affect in
any respect the applicability of the preceding sentence with
respect to any act or failure to act which occurred prior to
such amendment, repeal or adoption. The limitation on
liability provided by this Article applies to events
occurring at the time a person serves as a director of the
corporation whether or not such person is a director at the
time of any proceeding in which liability is asserted.
THIRTEENTH: The corporation reserves the right to
amend, alter, change or repeal any provisions 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
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 my act and deed and the facts stated
herein are true, and accordingly have hereunto set my hand
this 23rd day of September, 1993.
Barbara J. Lucas
--------------------
Barbara J. Lucas
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
THERMO REMEDIATION INC.
Thermo Remediation Inc. (the "Corporation"), a corporation
organized and existing under the laws of the State of Delaware,
hereby certifies as follows, pursuant to Section 242 of the
General Corporation Law of the State of Delaware:
1. That Article FOURTH of the Certificate of Incorporation
of the Corporation, as filed on September 23, 1993, is hereby
amended to increase the number of authorized shares of the
Corporation's Common Stock, $.01 par value per share, from 20
million shares to 50 million shares and that such amendment is
hereby effected by deleting said Article in its entirety and
inserting the following in substitution therefor:
"FOURTH: The total number of shares of capital stock which
the Corporation shall have authority to issue is:
Fifty Million (50,000,000) shares, and the par
value of each such share in One Cent ($.01)."
2. That the Board of Directors of the Corporation by
unanimous written consent dated as of July 22, 1996, duly adopted
the following resolutions:
RESOLVED, that it is in the best interests of the
Corporation that the authorized common stock of
the Corporation, $.01 par value, be increased to
50 million shares, and that, upon the approval of
such increase by the Corporation's Stockholders,
the proper officers of the Corporation be, and
each of them hereby are, authorized, empowered and
directed to execute on behalf of the Corporation a
Certificate of Amendment to the Corporation's
Certificate of Incorporation to reflect such
increase, and to file, or cause to be filed, such
Certificate of Amendment with the Secretary of
State of the State of Delaware.
RESOLVED, that the Board of Directors recommend to the
Stockholders for approval at the Annual Meeting
the increase in authorized shares of the
Corporation's common stock to 50 million shares as
previously approved by the Directors.
PAGE
3. That on September 25, 1996, at the Corporation's Annual
Meeting of Stockholders, the Amendment to the Corporation's
Certificate of Incorporation was duly adopted by the affirmative
vote of Stockholders of the Corporation holding a majority of the
shares of Common Stock, $.01 par value per share, of the
Corporation in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, this Certificate of Amendment has been
executed on behalf of the undersigned corporation by its duly
authorized officer and attested to by its duly authorized
Secretary this 31st day of October, 1996.
THERMO REMEDIATION INC.
By:_______________________________
John P. Appleton
Chief Executive Officer
ATTEST:
By:__________________________
Sandra L. Lambert
Secretary
PAGE
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER is made as of November 1,
1993, by and between THERMO REMEDIATION INC., a California
corporation (hereinafter sometimes called "TRI California"), and
THERMO REMEDIATION INC., a Delaware corporation (hereinafter
sometimes called "TRI Delaware") (TRI California and TRI Delaware
being herein sometimes collectively referred to as the
"Constituent Corporations").
The authorized capital stock of TRI California consists
of 1,500,000 shares of Capital Stock, par value $1.00 per share
(the "California Common Stock"), and the authorized capital stock
of TRI Delaware consists of 20,000,000 shares of Capital Stock,
par value $0.01 per share (the "Delaware Common Stock"). The
Directors of the Constituent Corporations deem it advisable and
to the advantage of said corporations that TRI California merge
with and into TRI Delaware in accordance with the following
terms, conditions and other provisions:
ARTICLE I
1.1 Merger. TRI California shall be merged with and
into TRI Delaware (the "Merger"), and TRI Delaware shall be the
surviving corporation, effective upon the date when this
Agreement is filed with the Secretaries of State of the States of
California and Delaware (the "Effective Date").
1.2 Effect of Merger. Upon the Effective Date, TRI
Delaware shall succeed to all of the rights, privileges, powers
and property of TRI California in the manner and as more fully
set forth in Section 259 of the General Corporation Law of the
State of Delaware.
1.3 Common Stock of TRI California. Upon the
Effective Date, by virtue of the Merger and without any action on
the part of the holder thereof, each share of California Common
Stock outstanding immediately prior thereto shall be converted
into four fully paid and non-assessable shares of Delaware Common
Stock.
1.4 Common Stock of TRI Delaware. Upon the Effective
Date, by virtue of the Merger and without any action on the part
of the holder thereof, each share of Delaware Common Stock
outstanding immediately prior thereto shall be canceled and
returned to the status of authorized but unissued shares.
1.5 Stock Certificates. On and after the Effective
Date, all of the outstanding certificates which prior to that
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time represented shares of California Common Stock shall be
deemed for all purposes to evidence ownership of and to represent
the shares of TRI Delaware into which the shares of TRI
California represented by such certificates have been converted
as herein provided. The registered owner on the books and
records of TRI California of any such outstanding stock
certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for
to TRI Delaware or its transfer agent, have and be entitled to
exercise any voting and other rights with respect to and to
receive any dividend and other distributions upon the shares of
TRI Delaware evidenced by such outstanding certificate as above
provided.
ARTICLE II
2.1 Certificate of Incorporation and Bylaws. The
Certificate of Incorporation of TRI Delaware as in effect on the
Effective Date, shall continue to be the Certificate of
Incorporation of TRI Delaware as the surviving corporation
without change or amendment until further amended in accordance
with the provisions thereof and applicable law. The Bylaws of
TRI Delaware, as in effect on the Effective Date, shall continue
to be the Bylaws of TRI Delaware as the surviving corporation
without change or amendment until further amended in accordance
with the provisions thereof and applicable law.
2.2 Directors. The directors of TRI Delaware as of
the Effective Date shall continue to be the Directors of TRI
Delaware and such directors shall serve until the first meeting
of stockholders of TRI Delaware and until their successors are
elected and qualified.
2.3 Officers. The officers of TRI Delaware shall
remain officers of TRI Delaware on the effective date until their
successors are elected and qualified or their prior resignation,
removal or death.
ARTICLE III
3.1 Further Assurances. From time to time, as and
when required by TRI Delaware or by its successors and assigns,
there shall be executed and delivered on behalf of TRI California
such deeds and other instruments, and there shall be taken or
caused to be taken by it such further and other action, as shall
be appropriate or necessary in order to vest or perfect in or to
confirm of record or otherwise in TRI Delaware the title to and
possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of TRI
California, and otherwise to carry out the purposes of this
Agreement, and the officers and directors of TRI Delaware are
fully authorized in the name and on behalf of TRI California or
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otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
3.2 Abandonment. At any time before the Effective
Date, this Agreement may be terminated and the Merger may be
abandoned by the Board of Directors of either TRI California or
TRI Delaware or both, notwithstanding approval of this Merger
Agreement by the shareholders of TRI California.
3.3 Counterparts. In order to facilitate the filing
and recording of this Merger Agreement, the same may be executed
in any number of counterparts, each of which shall be deemed to
be an original.
IN WITNESS WHEREOF, this Agreement, having first been
duly approved by the Board of Directors of TRI California and TRI
Delaware, is hereby executed on behalf of each of said
corporations by their respective officers thereunto duly
authorized.
THERMO REMEDIATION INC.,
a California corporation
By: James Lousararian
--------------------------
James Lousararian, Vice President
ATTEST: Sandra L. Lambert
---------------------------
Sandra L. Lambert, Secretary
THERMO REMEDIATION INC.,
a Delaware corporation
By: James Lousararian
---------------------------
James Lousararian, Vice President
ATTEST: Sandra L. Lambert
----------------------------
Sandra L. Lambert, Secretary
PAGE
CERTIFICATE OF SECRETARY
OF
THERMO REMEDIATION INC.
(a Delaware corporation)
I, Sandra L. Lambert, the Secretary of Thermo
Remediation Inc., a Delaware corporation, hereby certify that the
Agreement of Merger to which this Certificate is attached, after
having been first duly signed on behalf of the corporation by the
Vice President and Secretary under the corporate seal of said
corporation, was duly approved and adopted by written consent of
the stockholders of Thermo Remediation Inc. on November 1, 1993,
by the holders of all of the outstanding stock entitled to vote
thereon.
WITNESS my hand and seal of said Thermo Remediation
Inc. this 1st day of November, 1993.
(SEAL)
Sandra L. Lambert
-----------------------------------
Sandra L. Lambert, Secretary
CERTIFICATE OF SECRETARY
OF
THERMO REMEDIATION INC.
(a California corporation)
I, Sandra L. Lambert, the Secretary of Thermo
Remediation Inc., a California corporation, hereby certify that
the Agreement of Merger to which this Certificate is attached,
after having been first duly signed on behalf of the corporation
by the Vice President and Secretary under the corporate seal of
said corporation, was duly approved and adopted by written
consent of the shareholders of Thermo Remediation Inc. on
November 1, 1993, by the holders of a majority of the outstanding
stock entitled to vote thereon.
WITNESS my hand and seal of said Thermo Remediation
Inc. this 1st day of November, 1993.
(SEAL)
Sandra L. Lambert
-----------------------------------
Sandra L. Lambert, Secretary
PAGE
CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
James Lousararian and Sandra L. Lambert certify that:
1. They are the Vice President and the Secretary,
respectively, of Thermo Remediation Inc., a
Delaware corporation.
2. The Agreement of Merger in the form attached was
duly approved by the board of directors and
shareholders of the corporation.
3. The shareholder approval was by the holders of
100% of the outstanding shares of the corporation.
4. There is only one class of shares and the number
of shares outstanding is 100.
5. The percentage vote required is 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: November 1, 1993
James Lousararian
-----------------------------------
James Lousararian, Vice President
Sandra L. Lambert
-----------------------------------
Sandra L. Lambert, Secretary
PAGE
CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
James Lousararian and Sandra L. Lambert certify that:
1. They are the Vice President and the Secretary,
respectively, of Thermo Remediation Inc., a
California corporation.
2. The Agreement of Merger in the form attached was
duly approved by the board of directors and
shareholders of the corporation.
3. The shareholder approval was by the holders of 84%
of the outstanding shares of the corporation.
4. There is only one class of shares and the number
of shares outstanding is 1,350,953.
5. The percentage vote required is 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: November 1, 1993
James Lousararian
-----------------------------------
James Lousararian, Vice President
Sandra L. Lambert
-----------------------------------
Sandra L. Lambert, Secretary