Registration of Securities (General Form) — Form 10 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 10-12G Registration of Securities (General Form) HTML 1.79M
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, HTML 85K
Liquidation or Succession
19: EX-2.10 Plan of Acquisition, Reorganization, Arrangement, HTML 109K
Liquidation or Succession
3: EX-2.2 Plan of Acquisition, Reorganization, Arrangement, HTML 49K
Liquidation or Succession
4: EX-2.3 Plan of Acquisition, Reorganization, Arrangement, HTML 50K
Liquidation or Succession
5: EX-2.4 Plan of Acquisition, Reorganization, Arrangement, HTML 50K
Liquidation or Succession
6: EX-2.5 Plan of Acquisition, Reorganization, Arrangement, HTML 44K
Liquidation or Succession
7: EX-2.6 Plan of Acquisition, Reorganization, Arrangement, HTML 211K
Liquidation or Succession
8: EX-2.7 Plan of Acquisition, Reorganization, Arrangement, HTML 215K
Liquidation or Succession
9: EX-2.8 Plan of Acquisition, Reorganization, Arrangement, HTML 282K
Liquidation or Succession
10: EX-2.8.1 Plan of Acquisition, Reorganization, Arrangement, HTML 37K
Liquidation or Succession
11: EX-2.8.2 Plan of Acquisition, Reorganization, Arrangement, HTML 39K
Liquidation or Succession
12: EX-2.8.3 Plan of Acquisition, Reorganization, Arrangement, HTML 29K
Liquidation or Succession
13: EX-2.8.4 Plan of Acquisition, Reorganization, Arrangement, HTML 45K
Liquidation or Succession
14: EX-2.8.5 Plan of Acquisition, Reorganization, Arrangement, HTML 54K
Liquidation or Succession
15: EX-2.8.5A Plan of Acquisition, Reorganization, Arrangement, HTML 21K
Liquidation or Succession
16: EX-2.8.6 Plan of Acquisition, Reorganization, Arrangement, HTML 24K
Liquidation or Succession
17: EX-2.8.7 Plan of Acquisition, Reorganization, Arrangement, HTML 180K
Liquidation or Succession
18: EX-2.9 Plan of Acquisition, Reorganization, Arrangement, HTML 112K
Liquidation or Succession
20: EX-3.1.1 Articles of Incorporation/Organization or By-Laws HTML 47K
21: EX-3.1.2 Articles of Incorporation/Organization or By-Laws HTML 44K
22: EX-3.1.3 Articles of Incorporation/Organization or By-Laws HTML 71K
23: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 112K
24: EX-4.1 Instrument Defining the Rights of Security Holders HTML 18K
33: EX-4.10 Instrument Defining the Rights of Security Holders HTML 41K
34: EX-4.10.1 Instrument Defining the Rights of Security Holders HTML 25K
35: EX-4.11 Instrument Defining the Rights of Security Holders HTML 40K
36: EX-4.11.1 Instrument Defining the Rights of Security Holders HTML 26K
37: EX-4.11.2 Instrument Defining the Rights of Security Holders HTML 28K
38: EX-4.11.3 Instrument Defining the Rights of Security Holders HTML 27K
39: EX-4.11.4 Instrument Defining the Rights of Security Holders HTML 27K
40: EX-4.12 Instrument Defining the Rights of Security Holders HTML 358K
41: EX-4.13 Instrument Defining the Rights of Security Holders HTML 166K
42: EX-4.14 Instrument Defining the Rights of Security Holders HTML 93K
43: EX-4.15 Instrument Defining the Rights of Security Holders HTML 48K
44: EX-4.16 Instrument Defining the Rights of Security Holders HTML 84K
25: EX-4.2 Instrument Defining the Rights of Security Holders HTML 18K
26: EX-4.3 Instrument Defining the Rights of Security Holders HTML 18K
27: EX-4.4 Instrument Defining the Rights of Security Holders HTML 225K
28: EX-4.5 Instrument Defining the Rights of Security Holders HTML 80K
29: EX-4.6 Instrument Defining the Rights of Security Holders HTML 125K
30: EX-4.7 Instrument Defining the Rights of Security Holders HTML 104K
31: EX-4.8 Instrument Defining the Rights of Security Holders HTML 165K
32: EX-4.9 Instrument Defining the Rights of Security Holders HTML 73K
45: EX-10.1 Material Contract HTML 86K
58: EX-10.10 Material Contract HTML 76K
59: EX-10.11 Material Contract HTML 30K
60: EX-10.12 Material Contract HTML 22K
61: EX-10.13 Material Contract HTML 37K
62: EX-10.14 Material Contract HTML 39K
46: EX-10.2 Material Contract HTML 83K
47: EX-10.3 Material Contract HTML 166K
48: EX-10.4 Material Contract HTML 49K
49: EX-10.5 Material Contract HTML 65K
50: EX-10.5.1 Material Contract HTML 146K
51: EX-10.6 Material Contract HTML 69K
52: EX-10.7 Material Contract HTML 295K
53: EX-10.7.1 Material Contract HTML 82K
54: EX-10.7.2 Material Contract HTML 118K
55: EX-10.7.3 Material Contract HTML 56K
56: EX-10.8 Material Contract HTML 110K
57: EX-10.9 Material Contract HTML 44K
63: EX-16.1 Letter re: Change in Certifying Accountant HTML 25K
64: EX-21.1 Subsidiaries of the Registrant HTML 20K
EX-3.1.1 — Articles of Incorporation/Organization or By-Laws
The Corporation, organized and existing under and by virtue of the Delaware General
Corporation Law (the “DGCL”), originally incorporated as “Info Investors, Inc” on February 13, 1997
does hereby certify as follows:
FIRST: Name. The name of the Corporation is:
Pure Earth, Inc.
SECOND: Registered Office and Agent. The address of the Corporation’s registered
office in the State of Delaware is 2711 Centerville Road, Suite 400, City of Wilmington 19808,
County of New Castle. The name of its registered agent at such address is Corporation Service
Company.
THIRD: Purpose. The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the laws of the DGCL.
FOURTH: Authorized Capital Stock. The total number of shares of capital stock which
the Corporation shall have authority to issue is twenty five million five hundred thousand
(25,500,000) shares, of which twenty five million (25,000,000) shares shall be Common Stock, par
value $0.001 per share (“Common Stock”), and five hundred thousand
(500,000) shares shall be Preferred Stock, par value $0.001 per share (“Preferred Stock”).
(a) Common Stock. Each holder of record of Common Stock shall have the right to one
vote for each share of Common Stock registered in their name on the books of the Corporation on all
matters submitted to a vote of stockholders except as the right to exercise such vote may be
limited by the provisions of this Amended and Restated Certificate of Incorporation or of any class
or series of Preferred Stock established hereunder. The holders of Common Stock shall be entitled
to such dividends as may be declared by the Board of Directors from time to time, provided that
required dividends, if any, on the Preferred Stock have been paid or provided for. In the event of
the liquidation, dissolution, or winding up, whether voluntary or involuntary of the Corporation,
the assets and funds of the Corporation available for distribution to stockholders, and remaining
after the payment to holders of Preferred Stock of the amounts (if any) to which they are entitled,
shall be divided and paid to the holders of the Common Stock according to their respective shares.
(b) Preferred Stock. The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors of the Corporation is hereby expressly authorized to provide,
by resolution or resolutions duly adopted by it prior to issuance, for the creation of each such
series and to fix the designation and the powers, preferences, rights, qualifications, limitations
and restrictions relating to the shares of each such series. The authority of the Board of
Directors with respect to each series of Preferred Stock shall include, but not be limited to,
determining the following:
1. the designation of such series, the number of shares to constitute such series and
the stated value if different from the par value thereof;
2. whether the shares of such series shall have voting rights, in
addition to any voting rights provided by law, and, if so, the terms of such voting rights,
which may be general or limited;
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3. the dividends, if any, payable on such series, whether any such dividends shall be
cumulative, and, if so, from what dates, the conditions and dates upon which such dividends
shall be payable, and the preference or relation which such dividends shall bear to the
dividends payable on any shares of stock of any other class or any other series of Preferred
Stock;
4. whether the shares of such series shall be subject to redemption by the Corporation,
and, if so, the times, prices and other conditions of such redemption;
5. the amount or amounts payable upon shares of such series upon, and the rights of the
holders of such series in, the voluntary or involuntary liquidation, dissolution or winding
up, or upon any distribution of the assets, of the Corporation;
6. whether the shares of such series shall be subject to the operation of a retirement
or sinking fund and, if so, the extent to and manner in which any such retirement or sinking
fund shall be applied to the purchase or redemption of the shares of such series for
retirement or other corporate purposes and the terms and provisions relating to the
operation thereof;
7. whether the shares of such series shall be convertible into, or exchangeable for,
shares of stock of any other class or any other series of Preferred Stock or any other
securities and, if so, the price or prices or the rate or rates of conversion or exchange
and the method, if any, of adjusting the same, and any other terms and conditions of
conversion or exchange;
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8. the limitations and restrictions, if any, to be effective while any
shares of such series are outstanding upon the payment of dividends or the making of other
distributions on, and upon the purchase, redemption or other acquisition by the Corporation
of, the Common Stock or shares of stock of any other class or any other series of Preferred
Stock;
9. the conditions or restrictions, if any, upon the creation of indebtedness of the
Corporation or upon the issue of any additional stock, including additional shares of such
series or of any other series of Preferred Stock or of any other class; and
10. any other powers, preferences and relative, participating, optional and other
special rights, and any qualifications, limitations and restrictions, thereof.
The powers, preferences and relative, participating, optional and other special rights of each
series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may
differ from those of any and all other series at any time outstanding. All shares of any one
series of Preferred Stock shall be identical in all respects with all other shares of such series,
except that shares of any one series issued at different times may differ as to the dates from
which dividends thereof shall be cumulative.
FIFTH: Directors.
(a) The number of directors comprising the Board of Directors shall be not less than one nor
more than 15 as may be determined from time to time by resolution adopted by the Board of Directors
of the Corporation.
(b) The directors shall be elected by the holders of shares of capital stock of the
Corporation entitled to vote on the election of directors, and directors shall be elected by a
plurality vote.
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(c) Upon the filing of this Amended and Restated Certificate of Incorporation, the Board of
Directors shall be divided into three classes, designated as Class I, Class II and Class III. The
number of directors in each class shall be as nearly equal as possible. At each annual election,
any vacancy in any class may be filled and the successors to the directors of the class whose terms
shall expire in that year shall be elected to hold office for the term of three years, and the term
of office of one class of directors shall expire in each year. In the event the number of
directors is increased, election may be made to a class of directors with terms expiring in three
years or less in order to maintain proportionate equality between the classes. The Class I
directors shall serve until the first annual meeting of stockholders held after the Corporation has
filed this Amended and Restated Certificate of Incorporation, the Class II directors until the
second annual meeting of stockholders held after the Corporation has filed this Amended and
Restated Certificate of Incorporation, and the Class III directors until the third annual meeting
of stockholders held after the Corporation has filed this Amended and Restated Certificate of
Incorporation and, in each case, until their successor(s) are duly elected and qualified. At each
annual meeting of stockholders commencing with the first annual meeting to be held after the
Corporation has filed this Amended and Restated Certificate of Incorporation each of the successors
to the directors of the Class whose term shall have expired that year shall be elected for a
three-year term. If the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in each class as nearly
equal as possible, and any additional director of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall coincide with the remaining
term of that class, but in no case will a decrease in the number of directors shorten the term of
any incumbent director.
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A director shall hold office until the annual meeting of stockholders for
the
year in which his or her term expires and until his or her successor shall be duly elected and
qualified, subject, however to prior death, resignation, retirement, disqualification or removal
from office. Any vacancy occurring in the Board of Directors, including any vacancy created by
reason of an increase in the number of directors, shall be filled for the unexpired term by the
concurring vote of a majority of the directors then in office, whether or not a quorum, and any
director 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 director’s
successor shall have been duly elected and qualified.
(e) A director may be removed from office at any time only for cause by the affirmative vote
of the holders of at least a majority of the voting power of all the then outstanding shares of
capital stock of the Corporation entitled to vote at any annual or regular election of directors
voting together as a single class. “Cause” shall mean willful and continuous failure of a director
to substantially perform such director’s duties to the Corporation or the willful engaging by a
director in gross misconduct materially and demonstrably injurious to the Corporation.
(f) Unless required by law or determined by the chairman of the meeting to be advisable, the
vote by stockholders on any matter, including the election of directors, need not be by written
ballot.
SIXTH: Limitation of Liability. No director of the Corporation shall be personally
liable to the Corporation or its stockholders for any monetary damages for breaches of fiduciary
duty as a director, provided 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 174 of the DGCL; or (iv) for any transaction
from which the director derived an improper personal benefit. No repeal or amendment of this
Article shall adversely affect any rights of any person pursuant to this Article which existed at
the time of such repeal or amendment with respect to acts or omissions occurring prior to such
repeal or amendment.
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SEVENTH: Indemnification.
(a) Mandatory Indemnification. The Corporation shall, to the fullest extent permitted
by applicable law, indemnify its directors and officers who were or are a party or are threatened
to be made a party to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (whether or not such action, suit or proceeding
arises or arose by or in the right of the Corporation or other entity) by reason of the fact that
such director or officer 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, general partner, agent or
fiduciary of another corporation, partnership, joint venture, trust or other enterprise (including
service with respect to employee benefit plans), against expenses (including, but not limited to,
attorneys fees and costs), judgments, fines (including excise taxes assessed on a person with
respect to any employee benefit plan) and amounts paid in settlement actually and reasonably
incurred by such director or officer in connection with such action, suit or proceeding, except as
otherwise provided in Section (c) hereof. A director or officer of the Corporation entitled to
indemnification under this Section (a) is hereafter called a “covered person.”
(b) Expenses. Expenses incurred by a covered person in defending a threatened,
pending or completed 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 such person to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation, except as
otherwise provided in Section (c).
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(c) Exceptions. No indemnification under Section (a) or advancement or reimbursement
of expenses under Section (b) shall be provided to a covered person (i) with respect to expenses or
the payment of profits arising from the purchase or sale of securities of the Corporation in
violation of Section 16(b) of the Securities Exchange Act of 1934, as amended; (ii) if a final
unappealable judgment or award establishes that such director or officer engaged in intentional
misconduct or a transaction from which the member, director or officer derived an improper personal
benefit; (iii) for expenses or liabilities of any type whatsoever (including, but not limited to,
judgments, fines, and amounts paid in settlement) which have been paid directly to, or for the
benefit of, such person by an insurance carrier under a policy of officers’ and directors’
liability insurance paid for or maintained by the Corporation or other person or entity; or (iv)
for amounts paid in settlement of any threatened, pending or completed action, suit or proceeding
without the written consent of the Corporation, which written consent shall not be unreasonably
withheld. The Board of Directors of the Corporation is hereby authorized, at any time by
resolution and without stockholder approval, to add to the above list of exceptions from the right
of indemnification under Section (a) hereof or advancement or reimbursement of expenses under
Section (b) hereof, but any such additional exception shall not apply with respect to any event,
act or omission which has occurred prior to the date that the Board of Directors in fact adopts
such resolution. Any such additional exception may, at any time after its adoption, be amended,
supplemented, waived or terminated by further resolution of the Board of Directors of the
Corporation.
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(d) Continuation of Rights. The indemnification and advancement or reimbursement of
expenses provided by, or granted pursuant to, this Article shall continue as to a person who has
ceased to be a director or officer of the Corporation, and shall inure to the benefit of the heirs,
executors and administrators of such person.
(e) General Provisions.
1. The term “to the fullest extent permitted by applicable law”, as used in this
Article, shall mean the maximum extent permitted by public policy, common law or statute.
Any covered person may, to the fullest extent permitted by applicable law, elect to have the
right to indemnification or to advancement or reimbursement of expenses, interpreted, at
such covered person’s option, (A) on the basis of the applicable law on the date this
Article was approved by the stockholders, or (B) on the basis of the applicable law in
effect at the time of the occurrence of the event, act or omission giving rise to the
action, suit or proceeding, or (C) on the basis of the applicable law in effect at the time
indemnification is sought.
2. The right of a covered person to be indemnified or to receive an advancement or
reimbursement of expenses pursuant to this Article: (A) may also be enforced as a contract
right pursuant to which the person entitled thereto may bring suit as if the provisions
hereof were set forth in a separate written contract between the Corporation and such
person, (B) to the fullest extent permitted by applicable law, is intended to be retroactive
and shall be available with respect to events, acts or omissions occurring prior to the
adoption hereof, and (C) shall continue to exist after the rescission or restrictive
modification (as determined by such covered person) of this Article with respect to events,
acts or omissions occurring before such rescission or restrictive
modification is adopted.
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3. If a request for indemnification or for the advancement or reimbursement of expenses
pursuant hereto is not paid in full by the Corporation within thirty days after a written
claim has been received by the Corporation together with all supporting information
reasonably requested by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim (plus interest at the
prime rate announced from time to time by the Corporation’s primary lender) and, if
successful in whole or in part, the claimant shall be entitled also to be paid the expenses
(including, but not limited to, attorney’s fees and costs) of prosecuting such claim.
Neither the failure of the Corporation (including its Board of Directors or independent
legal counsel) to have made a determination prior to the commencement of such action that
indemnification of or the advancement or reimbursement of expenses to the claimant is proper
in the circumstances, nor an actual determination by the Corporation (including its Board of
Directors or independent legal counsel) that the claimant is not entitled to indemnification
or to the reimbursement or advancement of expenses, shall be a defense to the action or
create a presumption that the claimant is not so entitled.
4. The indemnification and advancement or reimbursement of expenses provided by, or
granted pursuant to, this Article shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement or reimbursement of expenses may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
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5. Nothing contained in this Article shall be construed to limit the
rights and powers the Corporation possesses under applicable provisions of the DGCL, or
otherwise, including, but not limited to, the powers to purchase and maintain insurance,
create funds to secure or insure its indemnification obligations, and any other rights or
powers the Corporation may otherwise have under applicable law.
6. The provisions of this Article may, at any time (and whether before or after there
is any basis for a claim for indemnification or for the advancement or reimbursement of
expenses pursuant hereto), be amended, supplemented, waived or terminated, in whole or in
part, with respect to any covered person covered by a written agreement signed by the
Corporation and such person.
7. The Corporation shall have the right to appoint the attorney for a covered person,
provided such appointment is not unreasonable under the circumstances.
(f) Optional Indemnification. The Corporation may, to the fullest extent permitted by
applicable law, indemnify, and advance or reimburse expenses for, persons in all situations other
than that covered by this Article subject to the unanimous consent of the Board of Directors.
EIGHTH: Amendments to Certification of Incorporation. The Corporation reserves the
right to increase or decrease its authorized capital stock, or any class or series thereof, and to
reclassify the same, and to amend, alter, change or repeal any provision contained in this Amended
and Restated Certificate of Incorporation under which the Corporation is organized or in any
amendment thereto, in the manner now or hereafter prescribed by law, and all rights conferred upon
stockholders in this Amended and Restated Certificate of Incorporation or any amendment thereto are
granted subject to the aforementioned reservation.
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NINTH: Amendments to By-laws. The Board of Directors shall have the power at any
time, and from time to time, to adopt, amend and repeal any and all By-laws of the Corporation.
Any amendment to, or repeal of, any provision of the Bylaws of the Corporation which has not
previously received the approval of the Board of Directors shall require for adoption the
affirmative vote of the holders of at least a majority of the voting power of all the then
outstanding shares of capital stock of the Corporation entitled to vote at any duly convened annual
or special meeting of the stockholders, voting together in as a single class, in addition to any
other approval which is required by law, this Amended and Restated Certificate of Incorporation of
the Corporation, the Bylaws of the Corporation, or otherwise.
TENTH: Section 203. The Corporation expressly elects not to be governed by
Section 203 of the DGCL.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Articles of
Incorporation to be signed by Brent Kopenhaver, its Executive Vice President, this 22nd day of May,
2007.
