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EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
REPUBLIC SERVICES, INC.
The name of the Corporation (which is hereinafter referred to as the
"Corporation") is "Republic Services, Inc."
The original certificate of incorporation was filed with the Secretary
of State of the State of Delaware on December 20, 1996, under the name "Republic
Waste Companies Holding Co."
This Amended and Restated Certificate of Incorporation (the
"Certificate") has been duly proposed by resolutions adopted and declared
advisable by the Board of Directors of the Corporation, duly adopted by the sole
stockholder of the Corporation and duly executed and acknowledged by the
officers of the Corporation in accordance with Sections 103, 242 and 245 of the
General Corporation Law of the State of Delaware (the "DGCL").
The text of the Certificate of Incorporation of the Corporation is
hereby amended and restated in its entirety to read as follows:
ARTICLE I
NAME
The name of the corporation (which is hereinafter referred to as the
"Corporation") is: "Republic Services, Inc."
ARTICLE II
REGISTERED AGENT
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. The name of the Corporation's registered agent at such
address is The Corporation Trust Company.
ARTICLE III
PURPOSE
The purpose of the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized and incorporated under the
DGCL.
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ARTICLE IV
CAPITAL STOCK
SECTION 1. GENERAL.
(a) The total number of shares of stock which the Corporation
shall have authority to issue will be 800,000,000, consisting of
750,000,000 shares of Common Stock, par value $.01 per share (the
"Common Stock"), and 50,000,000 shares of Preferred Stock, par value
$.01 per share (the "Preferred Stock"). The Common Stock of the
Corporation shall be divided into two series, consisting of Class A
Common Stock and Class B Common Stock, which shall be designated by the
Board as Class A Common Stock or Class B Common Stock at the time of
issuance in accordance with Section 2(b) hereof. The Preferred Stock
may be issued in one or more series having such designations as may be
fixed by the Board of Directors (the "Board").
(b) Immediately upon the effectiveness of this Certificate,
each share of unclassified common stock of the Corporation, par value
$.01 per share, that is issued and outstanding immediately prior to
such effectiveness, shall automatically be changed into and
reclassified as 95,688,083 shares of Class B Common Stock.
SECTION 2. COMMON STOCK.
(a) ISSUANCE AND CONSIDERATION. Any unissued or treasury
shares of the Common Stock may be issued for such consideration as may
be fixed in accordance with applicable law from time to time by the
Board of Directors.
(b) DESIGNATION. Of the 750,000,000 authorized shares of
Common Stock of the Corporation, 250,000,000 shares are initially
designated as shares of Class A Common Stock, 125,000,000 shares are
initially designated as shares of Class B Common Stock and 375,000,000
shares are not yet designated. The number of shares designated as Class
A Common Stock or Class B Common Stock may be increased or decreased
from time to time by a resolution or resolutions adopted by the Board
or any duly authorized committee thereof and in accordance with
provisions herein below without the consent of the holders of any
outstanding shares of Common Stock or Preferred Stock. Except as
otherwise set forth below in this Article IV, the powers, preferences
and relative participating, optional or other special rights and
qualifications, limitations or restrictions of the Class A Common Stock
and Class B Common Stock shall be identical in all respects. Every
reference in this Certificate to a majority or other proportion of
shares of Common Stock, or any series thereof with respect to approval
or voting, shall refer to such majority or other proportion of the
votes to which such shares of Common Stock, or such series thereof as
the case may be, are entitled.
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(c) CONVERSION PRIOR TO THE DISTRIBUTION. Prior to the
Distribution (as defined below), shares of Class B Common Stock shall
be convertible into shares of Class A Common Stock as follows:
(1) OPTIONAL CONVERSION. The Initial Holder (as
defined below) of shares of Class B Common Stock shall be
entitled, at any time or from time to time, to convert all or
any portion of its shares of Class B Common Stock into shares
of Class A Common Stock on a one-for-one basis. In this
Certificate, the term "Initial Holder" means Republic
Industries, Inc., a Delaware corporation.
(2) AUTOMATIC CONVERSION.
(i) Any shares of Class B Common Stock
transferred by the Initial Holder or any
of its subsidiaries to any person, other
than the Initial Holder or any of its
subsidiaries, shall automatically convert
into shares of Class A Common Stock on a
one-for-one basis, except for the
distribution of Class B Common Stock to
stockholders of the Initial Holder as part
of the Distribution. In this Certificate,
the term "Distribution" means the
distribution of all shares of Common Stock
held by the Initial Holder as a dividend
to the stockholders of the Initial Holder
on a tax-free basis under Section 355 of
the Internal Revenue Code of 1986, as
amended (the "Code"), pursuant to a
private letter ruling from the Internal
Revenue Service satisfactory to the
Initial Holder (the "Letter Ruling").
(ii) All shares of Class B Common Stock then
issued or outstanding shall also
automatically convert into shares of Class
A Common Stock on a one-for-one basis if
the number of outstanding shares of Class
B Common Stock falls below 20% of the
aggregate number of outstanding shares of
Common Stock.
(d) CONVERSION FOLLOWING THE DISTRIBUTION. Following the
Distribution, shares of Class B Common Stock shall be convertible into
shares of Class A Common Stock and shares of Class A Common Stock shall
be convertible into shares of Class B Common Stock as follows:
(1) OPTIONAL CONVERSION. Following the Distribution,
(i) shares of Class A Common Stock will be convertible, at the
option of the holder thereof on a one-for-one basis into
shares of Class B Common Stock on the date on which any person
or group of persons other than the Initial Holder or any of
its subsidiaries (the "Offeror") makes an offer, which the
Board deems to be a bona fide offer, to the
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holders of Class B Common Stock to purchase 20% or more of the
issued and outstanding shares of such Class B Common Stock for
cash or securities or other property without making a similar
offer for shares of the Class A Common Stock, unless prior to
the date of the Distribution (the "Distribution Date"), the
Initial Holder delivers to the Corporation an opinion of
counsel reasonably satisfactory to the Corporation to the
effect that such conversion right would adversely affect the
Initial Holder's ability to obtain the Letter Ruling and (ii)
shares of Class B Common Stock will be convertible, at the
option of the holder thereof on a one-for-one basis into
shares of Class A Common Stock on the date on which any person
or group of persons other than the Initial Holder or any of
its subsidiaries makes an offer, which the Board deems to be a
bona fide offer, to purchase 20% or more of the issued and
outstanding shares of such Class A Common Stock for cash or
securities or other property without making a similar offer
for shares of the Class B Common Stock, unless prior to the
Distribution Date, the Initial Holder delivers to the
Corporation an opinion of counsel reasonably satisfactory to
the Corporation to the effect that such conversion right would
adversely affect the Initial Holder's ability to obtain the
Letter Ruling. The Corporation will provide notice in writing
to all holders of Common Stock of any offer referred to in the
foregoing clauses (i) and (ii). Such notice shall be provided
by mailing notice of such offer, first class postage prepaid,
to each holder of the class of Common Stock then entitled to
be converted, at such holder's address as it appears on the
transfer books of the Corporation. Except as otherwise
provided in this Certificate, the shares of Common Stock of
one series in the same class may only be so converted to the
other series in the same class during the period in which such
bona fide offer is in effect. Any shares of Common Stock so
converted and not acquired by the Offeror prior to the
termination, rescission or completion of the offer will
automatically reconvert to shares of the Class from which it
was converted upon such termination, rescission or completion.
(2) AUTOMATIC CONVERSION.
(i) Subject to the provisions hereof shares of
Class B Common Stock shall automatically
convert into shares of Class A Common
Stock on a one-for-one basis on the fifth
anniversary of the Distribution Date,
unless prior to the Distribution Date, the
Initial Holder delivers to the Corporation
an opinion of counsel reasonably
satisfactory to the Corporation to the
effect that such automatic conversion
would adversely affect the Initial
Holder's ability to obtain the Letter
Ruling. If such opinion is received,
approval of such conversion shall be
submitted to a vote of the holders of the
Common Stock as soon as practicable after
the fifth anniversary of the Distribution
Date, unless the Initial Holder delivers
to the Corporation an opinion of counsel
reasonably satisfactory to the Corporation
prior to such fifth anniversary that such
vote would adversely affect the tax-free
status of the
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Distribution. Approval of such conversion
shall require the affirmative vote of the
holders of a majority of the shares of
both the Class A Common Stock and Class B
Common Stock present in person or by
proxy, voting together as a single class,
with each share entitled to one vote for
such purpose.
(ii) In addition, following the Distribution,
if any person or entity or persons or
entities acting together as a group
acquires 20% or more of the outstanding
shares of Class B Common Stock, all shares
of Class B Common Stock held by such
person, entity or group shall
automatically be converted into shares of
Class A Common Stock on a one-for-one
basis, unless prior to the Distribution
Date, the Initial Holder delivers to the
Corporation an opinion of counsel
reasonably satisfactory to the Corporation
to the effect that such automatic
conversion would adversely affect the
Initial Holder's ability to obtain the
Letter Ruling.
(e) CONVERSION PROCEDURES.
(1) RESERVATION OF SHARES. The Corporation shall at
all times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but unissued
Common Stock for the purpose of effecting any conversion of
the Common Stock pursuant to Sections 2(c) and 2(d), such
number of shares of Common Stock deliverable upon any such
conversion.
(2) NOTICE. The Corporation shall provide notice of
any automatic conversion of shares of Common Stock to holders
of record thereof not less than 30 nor more than 60 days prior
to the date fixed for such conversion; PROVIDED, HOWEVER, that
if the timing or nature of the effectiveness of an automatic
conversion makes it impracticable to provide at least 30 days'
notice, the Corporation shall provide such notice as soon as
practicable. Such notice shall be provided by mailing notice
of such conversion first class postage prepaid, to each holder
of record of the Common Stock, at such holder's address as it
appears on the transfer books of the Corporation; provided,
however, that no failure to give such notice nor any defect
therein shall affect the validity of the automatic conversion
of any such shares of Common Stock. Each such notice shall
state, as appropriate, the following:
(i) the automatic conversion date;
(ii) the number and series of outstanding
shares of Common Stock that are to
be converted automatically;
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(iii) the place or places where
certificates for such shares are to
be surrendered for conversion; and
(iv) that upon conversion, no dividends
will be declared on the shares of
Common Stock so converted following
such conversion date.
(3) RIGHTS UPON CONVERSION. Immediately upon
conversion, the rights of the holders of shares of Class A
Common Stock or Class B Common Stock, as the case may be,
shall cease and such holders shall be treated for all purposes
as having become the record owners of such shares of the
series in the same class of Common Stock issuable upon such
conversion; provided, however, that such persons shall be
entitled to receive when paid any dividends declared on the
Class A Common Stock or Class B Common Stock, as the case may
be, as of a record date preceding the time of such conversion
and unpaid as of the time of such conversion.
(4) SURRENDER OF CERTIFICATES FOR CONVERSION. Any
conversion pursuant to Sections 2(c) and 2(d) hereof may be
effected at the office of the Corporation or any transfer
agent for the Common Stock and at such other place or places,
if any, as the Board may designate. Upon conversion pursuant
to Sections 2(c) and 2(d) hereof, the Corporation shall make
no payment or adjustment on account of dividends accrued or in
arrears on Common Stock surrendered for conversion or on
account of any dividends on Common Stock issuable on such
conversion. Before any holder of Common Stock shall be
entitled to convert the same into any other series of the same
class of stock pursuant to Sections 2(c) and 2(d) hereof, such
holder shall surrender the certificate or certificates for
such Common Stock at the office of said transfer agent (or
other place as provided above). Such certificate(s), if the
Corporation shall so request, shall be duly endorsed to the
Corporation or in blank or accompanied by proper instruments
of transfer to the Corporation or in blank (such endorsements
or instruments of transfer to be in form satisfactory to the
Corporation).
In addition, if any holder elects to convert shares
of Common Stock pursuant to Section 2(c)(1) or 2(d)(1) hereof,
the certificates surrendered by such holder shall also be
accompanied by a written notice to the Corporation at said
office stating that such holder elects to convert all or a
specified number of the shares of the Common Stock represented
by such certificate(s) in accordance with such Section and
stating the name(s) in which such holder desires the
certificate(s) representing the stock to be issued. In the
case of an election to convert pursuant to Section 2(d)(1),
such written notice shall also state the name(s) of the
Offeror making the offer entitling such holder to convert such
Common Stock.
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(5) DELIVERY OF CONVERTED STOCK CERTIFICATES. As
promptly as practicable after the time of conversion, upon the
delivery to the Corporation of certificates formerly
representing shares of Class A Common Stock or Class B Common
Stock, as the case may be, the Corporation shall deliver or
cause to be delivered, to or upon the written order of the
record holder of such surrendered certificates, a certificate
or certificates representing the number of fully paid and
nonassessable shares of the series in the same class into
which such shares were converted in accordance with the
provisions of Sections 2(c) and 2(d) hereof.
(6) RECONVERSION LEGEND. Any certificate of Common
Stock issued in connection with a conversion pursuant to
Section 2(d)(1) hereof shall bear a legend substantially to
the effect that any share of Common Stock so converted but not
acquired by the Offeror prior to the termination, rescission
or completion of the offer will automatically reconvert to a
share of the series in the same class from which it was so
converted upon such termination, rescission or completion.
(7) TAXES ON CONVERSION. The Corporation will pay any
and all documentary, stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of shares of one
Class in the same series of Common Stock on the conversion of
shares of the other Class in the same series of Common Stock
pursuant to Sections 2(d)(1) and 2(d)(2); provided, however,
that the Corporation shall not be required to pay any tax
which may be payable in respect of any registration of
transfer involved in the issue or delivery of shares of one
Class in the same series of Common Stock in a name other than
that of the registered holder of the other Class in the same
series of Common Stock converted, and no such issue or
delivery shall be made unless and until the person requesting
such issue has paid to the Corporation the amount of any such
tax or has established, to the satisfaction of the
Corporation, that such tax has been paid.
(f) VOTING. Holders of Class A Common Stock shall be entitled
to one vote per share while holders of Class B Common Stock shall be
entitled to five votes per share on all matters submitted to a vote of
the stockholders, including the election of directors; provided,
however, that with respect to any proposed conversion of the shares of
Class B Common Stock into shares of Class A Common Stock that is
submitted to a vote of the holders of the Common Stock pursuant to
Section 2(d)(2)(i), every holder of a share of Common Stock,
irrespective of class, shall have one vote in person or by proxy for
each share of Common Stock standing in his or her name on the transfer
books of the Corporation. Except as otherwise required by law or this
Article IV, Section 2(f) or provided in any resolution adopted by the
Board with respect to any series of Preferred Stock, the holders of
Common Stock will possess all voting power and the holders of Class A
Common Stock and Class B Common Stock shall vote together as a single
class. Except as otherwise provided by law, and subject to any voting
rights granted holders of any Preferred Stock, amendments to the
Certificate must be approved by a majority of the votes entitled to be
cast by all outstanding shares of Class A Common Stock and Class B
Common Stock, voting together as a single
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class, PROVIDED, HOWEVER, amendments to the Certificate that would
alter or change the powers, preferences or special rights of the Class
A Common Stock or Class B Common Stock so as to affect them adversely
must also be approved by a majority of the outstanding shares of the
series in the same class that is adversely affected by such amendment,
voting as a separate class.
(g) DIVIDENDS. Subject to any preferential rights of any
outstanding series of Preferred Stock created by the Board from time to
time, the holders of shares of Class A Common Stock and Class B Common
Stock shall be entitled to such cash dividends as may be declared from
time to time by the Board from funds available therefor, which
dividends are not required to be declared on both such Classes,
PROVIDED that holders of shares of Class A Common Stock shall be
entitled to receive an equal pro rata share of any amounts received by
holders of shares of Class B Common Stock. In addition, in connection
with any stock dividend that may be declared by the Board from time to
time, holders of Class A Common Stock shall be entitled to receive such
dividend only in shares of Class A Common Stock while holders of Class
B Common Stock shall be entitled to receive such dividend either in
shares of Class A Common Stock or in shares of Class B Common Stock as
may be determined by the Board. Neither the shares of Class A Common
Stock nor the shares of Class B Common Stock may be reclassified,
subdivided or combined unless such reclassification, subdivision or
combination occurs simultaneously and in the same proportion for each
class.
(h) LIQUIDATION. Subject to any preferential rights of any
outstanding series of Preferred Stock created from time to time by the
Board, upon liquidation, dissolution or winding up of the Corporation,
the holders of shares of Class A Common Stock and Class B Common Stock
shall be entitled to receive pro rata all assets of the Corporation
available for distribution to such holders.
(i) OTHER RIGHTS. In the event of any merger or consolidation
of the Corporation with or into another company in connection with
which shares of Common Stock are converted into or exchangeable for
shares of stock, other securities or property (including cash), all
holders of Common Stock, regardless of series, will be entitled to
receive the same kind and amount of shares of stock and other
securities and property (including cash).
SECTION 3. PREFERRED STOCK. The Preferred Stock may be issued from time
to time in one or more series. The Board is hereby authorized to provide for the
issuance of shares of Preferred Stock in one or more series and, by filing a
certificate of designations pursuant to the DGCL (hereinafter referred to as a
"Preferred Stock Designation"), to establish from time to time the number of
shares to be included in each such series, and to fix the designation, powers,
privileges, preferences and rights of the shares of each such series and the
qualifications, limitations and restrictions thereof. The authority of the Board
with respect to each series shall include, but not be limited to, determination
of the following:
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(a) the designation of the series, which may be by
distinguishing number, letter or title;
(b) the number of shares of the series, which number the Board
may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares
thereof then outstanding);
(c) whether dividends, if any, shall be cumulative or
noncumulative, and, in the case of shares of any series having
cumulative dividend rights, the date or dates or method of determining
the date or dates from which dividends on the shares of such series
shall be cumulative;
(d) the rate of any dividends (or method of determining such
dividends) payable to the holders of the shares of such series, any
conditions upon which such dividends shall be paid and the date or
dates or the method for determining the date or dates upon which such
dividends shall be payable;
(e) the price or prices (or method of determining such price
or prices) at which, the form of payment of such price or prices (which
may be cash, property or rights, including securities of the same or
another corporation or other entity) for which, the period or periods
within which and the terms and conditions upon which the shares of such
series may be redeemed, in whole or in part, at the option of the
Corporation or at the option of the holder or holders thereof or upon
the happening of a specified event or events, if any;
(f) the obligation, if any, of the Corporation to purchase or
redeem shares of such series pursuant to a sinking fund or otherwise
and the price or prices at which, the form of payment of such price or
prices (which may be cash, property or rights, including securities of
the same or another corporation or other entity) for which, the period
or periods within which and the terms and conditions upon which the
shares of such series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(g) the amount payable out of the assets of the Corporation to
the holders of shares and preferences, if any, of the series in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation;
(h) provisions, if any, for the conversion or exchange of the
shares of such series, at any time or times at the option of the holder
or holders thereof or at the option of the Corporation or upon the
happening of a specified event or events, into shares of any other
class or classes or any other series of the same or any other class or
classes of stock, or any other security, of the Corporation, or any
other corporation or other entity, and the price or prices or rate or
rates of conversion or exchange and any adjustments applicable thereto,
and all other terms and conditions upon which such conversion or
exchange may be made;
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(i) restrictions on the issuance of shares of the same series
or of any other class or series, if any; and
(j) the voting rights, if any, of the holders of shares of the
series.
ARTICLE V
BOARD OF DIRECTORS
The Board of Directors shall consist of one or more members. The number
of directors shall be fixed by, or in the manner provided in, the Bylaws. At the
first annual meeting of stockholders and at each annual meeting of stockholders
thereafter, the respective terms of all of the directors then serving in office
shall expire at the meeting, and successors to the directors shall be elected to
hold office until the next succeeding annual meeting. Election of directors need
not be by written ballot. Existing directors may be nominated for election each
year for a successive term, in the manner provided in the Bylaws. Each director
shall hold office for the term for which such director is elected and qualified
or until the successor of such director shall have been elected and qualified or
until his earlier resignation, disqualification, removal from office or death.
The Board of Directors shall have all powers and authority which may be granted
to a board of directors of a corporation under the DGCL, including but not
limited to the following:
(a) to adopt, amend or repeal the Bylaws of the Corporation;
(b) to authorize and cause to be executed mortgages and liens
upon the real and personal property of the Corporation;
(c) to set apart out of any of the funds of the Corporation
available for dividends a reserve or reserves for any proper purpose
and to abolish any such reserve in the manner in which it was created;
(d) to designate one or more committees;
(e) to sell, lease or exchange all or substantially all of the
property and assets of the Corporation, including its goodwill and its
corporate franchises, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money of
property including shares of stock in, and/or other securities of, any
other corporation or corporations, as the Board of Directors shall deem
expedient and for the best interest of the Corporation, when and as
authorized by the shareholders entitled to vote thereon;
(f) to provide indemnification for directors, officers,
employees, and/or agents of the Corporation to the fullest extent
permitted by law, subject however, to the rules against limitation on
liability of directors as set forth in the DGCL, as amended form time
to time; and
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(g) to determine from time to time whether and to what extent,
and at what times and places and under what conditions and regulations,
the accounts and books of the Corporation or any of them, shall be
opened to the inspection of the stockholders, and no stockholder shall
have any right to inspect any account or book or document of the
Corporation, except as conferred by the DGCL or authorized by the Board
of Directors, or by a resolution of the stockholders.
ARTICLE VI
LIMITED LIABILITY; INDEMNIFICATION
SECTION 1. LIMITED LIABILITY OF DIRECTORS. 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, if required by the DGCL, as amended from time to time, 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 DGCL, or (iv) for any transaction from which the director derived an
improper personal benefit. Neither the amendment nor repeal of Section 1 of this
Article VI shall eliminate or reduce the effect of Section 1 of this Article VI
in respect of any matter occurring, or any cause of action, suit or claim that,
but for Section 1 of this Article VI would accrue or arise, prior to such
amendment or repeal.
SECTION 2. INDEMNIFICATION AND INSURANCE.
(a) RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that
such person, or a person of whom such person is the legal
representative, is or was a director or officer of the Corporation or
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 employee benefit plans, whether the basis of such proceeding
is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the DGCL, 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 said law
permitted the Corporation to provide prior to such amendment), against
all expense (including attorney's fees), liability and loss reasonably
incurred or suffered by such person in connection therewith.
(b) PAYMENT OF EXPENSES. The right to indemnification
conferred in this Section shall be a contract right and shall include
the right to have the Corporation pay the expenses incurred in
defending any such proceeding in advance of its final disposition,
PROVIDED, HOWEVER, that to the extent required by law, such payment of
expenses in advance of the final disposition of the proceeding shall be
made only upon receipt of an undertaking by the indemnified person to
repay all amounts advanced if it should be ultimately determined that
he or she is not entitled to the requested indemnification or
advancement of expenses under applicable law; any advance payments
shall be paid by the Corporation within 20 calendar days after the
receipt by the
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Corporation of a statement or statements from the claimant requesting
such advance or advances from time to time. The Corporation may grant
rights to indemnification, and rights to have the Corporation pay the
expenses incurred in defending any proceeding in advance of its final
disposition, to any employee or agent of the Corporation to the fullest
extent of the provisions of this Article with respect to the
indemnification and advancement of expenses of directors and officers
of the Corporation.
(c) NON-EXCLUSIVITY OF RIGHTS. Any right to indemnification
and the payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Section shall not be
exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of this Certificate, bylaw,
agreement, vote of stockholders or disinterested directors or
otherwise. No repeal or modification of this Article shall in any way
diminish or adversely affect the rights of any director, officer,
employee or agent of the Corporation hereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
(d) 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 the DGCL.
(e) SEVERABILITY. If any provision or provisions of this
Article VI shall be held to be invalid, illegal or unenforceable for
any reason whatsoever: (1) the validity, legality and enforceability of
the remaining provisions of this Article VI (including, without
limitation, each portion of any paragraph of this Article VI containing
any such provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and (2) to the fullest
extent possible, the provisions of this Article VI (including, without
limitation, each such portion of any paragraph of this Article VI
containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
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IN WITNESS WHEREOF, said Republic Services, Inc. has caused this
Amended and Restated Certificate of Incorporation to be signed by its Vice
Chairman and attested by its Assistant Secretary this 30th day of June, 1998.
By: /s/ Harris W. Hudson
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Name: Harris W. Hudson
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Title: Vice Chairman
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ATTEST:
By: /s/ David Barclay
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Name: David Barclay
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Title: Assistant Secretary
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