EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
FM 1993A CORP.
FIRST. The name of the corporation is FM 1993A Corp.
SECOND. 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. The name of its registered agent at such address is
The Corporation Trust Company.
THIRD. The purposes of the Corporation are limited to: (i)
issuing and selling debt obligations ("Notes"), as principal and as agent for
CRC-I Limited Partnership, a Massachusetts limited partnership, and CRC-II
Limited Partnership, a Massachusetts limited partnership (the "Borrowers")
and entering into an indenture in connection therewith (the "Financing");
(ii) acquiring, owning and holding obligations of the Borrowers, accounts,
investments and other property to be pledged as collateral for the Notes and
pledging such property as collateral for the Notes; and (iii) engaging in any
other activities that are necessary, suitable, or convenient to accomplish
the matters set forth in the foregoing clauses (i) and (ii). In furtherance
of such limited purposes, the Corporation shall not create, incur or assume
any indebtedness other than pursuant to or in connection with the Financing
and the transactions contemplated thereby, or incur, assume, or guarantee the
indebtedness of any person or entity, including, without limitation, pursuant
to any purchase or repurchase agreement, capital lease, indemnity, or any
keep-well, take-or-pay, through-put, or other arrangement having the effect
of assuring or holding harmless any third person or entity against loss with
respect to any obligation of such other person or entity, unless such
indebtedness is an invoice, statement of account, check, work request,
purchase order or other similar document representing expenses relating to
the permitted activities of the Corporation described above. In addition to
the foregoing, in furtherance of such limited purposes, the Corporation shall
(i) observe all corporate formalities, including the maintenance of current
minute books, (ii) maintain its own separate and distinct books of account
and corporate records, (iii) cause its financial statements to be prepared in
accordance with generally
accepted accounting principles in a manner that indicates the separate
existence of the Corporation and its assets and liabilities, (iv) pay all its
liabilities out of its own funds, (v) in all dealings with the public,
identify itself under its own name and as a separate and distinct entity, and
(vi) independently make decisions with respect to its business and daily
operations. The Corporation shall not commingle its assets with those of any
other person or entity.
FOURTH. The total number of shares which the corporation shall
have authority to issue is 1,000 shares of capital stock, without par value.
FIFTH. The name and mailing address of the incorporator is
Jonathan Bell, Esq., Hinckley, Allen & Snyder, 1500 Fleet Center, Providence,
Rhode Island 02903.
SIXTH. The powers of the incorporator are to terminate upon the
filing of the Certificate of Incorporation, and the name and mailing address
of the persons who are to serve directors until the first annual meeting of
stockholders or until their successors are elected and qualified are :
Name Address
Christopher Wilson 1-1 Concord Greene
Concord, MA 01742
Charles Duddles c/o Foodmaker, Inc.
9330 Balboa Avenue
San Diego, CA 92123
SEVENTH. The corporation is to have perpetual existence.
EIGHTH. The board of directors of the corporation is expressly
authorized to make, alter, restate or repeal by-laws of the corporation.
NINTH. Elections of directors need not be by written ballot
except and to the extent provided in the by-laws of the corporation.
TENTH. The personal liability of any director to the corporation
or its stockholders for monetary damages arising as a result of the director's
breach of his or her fiduciary duty as a director is hereby eliminated. Nothing
in this provision shall be construed as eliminating the liability of the
director (i) for any breach of the director's duty of loyalty to the corporation
or its stockholders, (ii) for acts
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or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware, or (iv) for any transaction from which the
officer derived an improper personal benefit.
ELEVENTH. Meetings of stockholders may be held within or without
the State of Delaware, as the by-laws may provide. The books of the
corporation may be kept (subject to any provisions contained in the statutes)
outside 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.
TWELFTH. The corporation reserves the right to amend, alter,
change or repeal any provision 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. So long as any Notes are outstanding, the Corporation will not
amend, alter, change or repeal any provision contained in this Certificate of
Incorporation without the written consent of holders of Notes representing a
majority of the Notes by aggregate outstanding principal amount.
THIRTEENTH. Notwithstanding any other provisions of this
Certificate of Incorporation and any provision of law that otherwise so
empowers the Corporation, the Corporation shall not, without the affirmative
vote of 100% of the members of the Board of Directors, do any of the
following:
(i) dissolve or liquidate, in whole or in part,
consolidate or merge with or into any other entity or convey or
transfer its properties and assets substantially as an entirety to
any entity; or
(ii) institute proceedings to be adjudicated bankrupt
or insolvent, or consent to the institution of bankruptcy or
insolvency proceedings against it or file a petition seeking, or
consent to, reorganization or relief under any applicable federal
or state law relating to bankruptcy, or consent to the appointment
of a receiver, liquidator, assignee, trustee, conservator (or
other similar official) of the Corporation or a substantial part
of its property, or make any assignment for the benefit of
creditors, or admit in writing its inability to pay its debt
generally as they become due, or make corporate notice in
furtherance of any such action.
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FOURTEENTH. So long as any Notes are outstanding, the Board of
Directors of the Corporation at all times shall include at least one
Independent Director. So long as any Notes are outstanding, when voting on
matters specified in Article THIRTEEN, the Independent Director shall take
into account both the interests of the Corporation and the interests of the
creditors of the Corporation.
For purposes of this Article FOURTEEN, the following terms shall
have the meanings set forth below:
(i) An "Independent Director" shall be an individual
who: (A) is not and has not been employed by Foodmaker, Inc., a
Delaware corporation, or any of its subsidiaries or affiliates, or
any partner of either of the Borrowers, or any person or entity
controlling either of the Borrowers or any partner of either of
the Borrower, or any of their respective subsidiaries or
affiliates (collectively, the "Subject Persons"), as a director,
officer or employee within the three years immediately prior to
such individual's appointment as an Independent Director; (B) is
not (and is not affiliated with a company or a firm that is) and
has not been a significant advisor or consultant to any of the
Subject Persons within the three years immediately prior to such
individual's appointment as an Independent Director; (C) does not
have and has not had personal services contract(s) with any of the
Subject Persons within the three years immediately prior to such
individual's appointment as an Independent Director; (D) is not
affiliated with a tax-exempt entity that receives significant
contributions from any of the Subject Persons within the three
years immediately prior to such individual's appointment as an
Independent Director; (E) is not the beneficial owner (nor an
officer or director of any such beneficial owner) at the time of
such individual's appointment as an Independent Director, or at
any time thereafter while serving as an Independent Director of
equity interests in any of the Subject Persons the value of which
constitute more than 5% of such individual's net worth; and (F) is
not a spouse, parent, sibling or child of any persons described by
(A) through (F);
(ii) An "affiliate" of a person, or a person
"affiliated with," a specified person, shall mean a person that
directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the
specified person.
(iii) The term "control" (including the terms
"controlling," "controlled by" and "under common control with")
shall mean the possession, direct or indirect, of the
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power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting
securities by contract, or otherwise; provided, however, that a
person shall not be deemed to control another person solely
because he or she is a director of such other person.
(iv) The term "person" shall mean any individual,
partnership, firm, corporation, association, trust, unincorporated
organization or other entity, as well as any syndicate or group
deemed to be a person pursuant to Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended.
(v) A "subsidiary" of a Person shall mean any
corporation the majority of the vesting stock of which is owned,
directly or indirectly through one or more other subsidiaries, by
such Person.
(vi) A person shall be deemed to be, or to be
affiliated with, a company or firm that is a "significant advisor
or consultant" to a Subject Person: if he, she or it, as the case
may be, received or would receive fees or similar compensation
from such Subject Person in excess of the lesser of (A) 3% of the
consolidated gross revenues which Foodmaker, Inc. and its
subsidiaries received during Foodmaker, Inc.'s last fiscal year;
(B) 5% of the gross revenues of the person during the last
calendar year, if such person is a self-employed individual and
(C) 3% of the consolidated gross revenues by such company or firm
for the sale of its products and services during its last fiscal
year, if the person is a company or firm; provided, however, that
director's fees and expense reimbursements shall not be included
in the gross revenues of an individual for purposes of this
determination.
(vii) A person shall be deemed to have "significant
personal services contract(s) with a Subject Person" if the fees
and other compensation received by the person pursuant to personal
services contract(s) with such Subject Person exceeded or would
exceed 5% of his or her gross revenues during the last calendar
year.
(viii) A tax-exempt entity shall be deemed to receive
"significant contributions from a Subject Person": if such
tax-exempt entity received during its last fiscal year, or expects
to receive during its current fiscal year, contribution from such
Subject Person in excess of the lesser of (A) 3% of the
consolidated gross revenues of Foodmaker, Inc. and its
subsidiaries during such fiscal year and (B) 5% of the
contributions received by the tax-exempt entity during such fiscal
year.
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The undersigned incorporator hereby acknowledges that the foregoing
Certificate of Incorporation is his free act and deed and that the facts stated
therein are true.
/S/ JONATHAN BELL
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Jonathan Bell, Incorporator
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
On the ___ day of December, 1993, before me personally came
Jonathan Bell, known to me to be the individual described in and who
acknowledged the foregoing instrument and swore and acknowledged that he
executed the same as his free act and deed.
/S/ LAURIE C. WILKINS
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Notary Public
My Commission Expires:________
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