Certificate of Incorporation - NE Restaurant Co. Inc.
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:00 pm 01/26/1994
944008593 - 2371641
CERTIFICATE OF INCORPORATION
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OF
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NE RESTAURANT COMPANY, INC.
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The undersigned, a natural person, for the purposes 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 generally known as the
"General Corporation Law of the State of Delaware"), hereby certifies that:
FIRST: The name of the corporation (hereinafter called the "Corporation")
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is NE Restaurant Company, Inc.
SECOND: The address, including street, number, city, and county, of the
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registered office of the Corporation in the State of Delaware is 32 Loockerman
Square, Suite L-100, 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-Hall
Corporation System, Inc.
THIRD: The nature of the business and the purposes to be conducted and
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promoted by the Corporation, shall be any 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 the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
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have authority to issue is 4,000,000 shares of Common Stock, $.01 par value.
FIFTH: The name and the mailing address of the incorporator is as follows:
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NAME ADDRESS
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Philip J. Flink c/o Brown, Rudnick, Freed & Gesmer, P.C.
One Financial Center
Boston, MA 02111
SIXTH: The name and the mailing address of the directors of the
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Corporation, each of whom shall serve until the first annual meeting of
shareholders and until his or her successor is elected and qualified, are as
follows:
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NAME ADDRESS
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Benjamin Jacobson Jacobson Partners, L.P.
625 Madison Avenue, Suite 10B
New York, NY 10022
Dennis Pedra NE Restaurant Company, Inc.
300 Pond Street
Randolph, MA 02138
Paul Hoagland NE Restaurant Company, Inc.
300 Pond Street
Randolph, MA 02138
SEVENTH: The Corporation shall have perpetual existence.
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EIGHTH: Whenever a compromise or arrangement is proposed between this
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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 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.
NINTH: For the management of the business and for the conduct of the
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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 that:
1. The business of the Corporation shall be conducted by the officers of
the Corporation under the supervision of the Board of Directors.
2. The number of directors which shall constitute the whole Board of
Directors shall be fixed by, or in the manner provided in, the By-Laws. No
election of Directors need be by written ballot.
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3. The Board of Directors of the Corporation may adopt, amend or repeal
the By-Laws of the Corporation at any time after the original adoption of the
By-Laws according to Section 109 of the General Corporation Law of the State of
Delaware; provided, however, that any amendment to provide 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 amendment to this Certificate
of Incorporation, in an initial By-Law, or in a By-Law adopted by the
stockholders of the Corporation entitled to vote.
TENTH: (a) The Corporation may, to the fullest extent permitted by
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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 a person indemnified 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 director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(b) 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 paragraph (b) of
this Article Tenth 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.
ELEVENTH: From time to time any of the provisions of this Certificate of
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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 the 26th day of January, 1994.
/s/ Philip J. Flink
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Philip J. Flink, Incorporator
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