Exhibit 3.21
[Articles of Incorporation of NERC Acquisition
Corp., now known as Bertucci's, Inc.]
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF ORGANIZATION
(GENERAL LAWS, CHAPTER 156B)
ARTICLE I
The exact name of the corporation is:
NERC ACQUISITION CORP.
ARTICLE II
The purpose of the corporation is to engage in the following
business activities:
SEE CONTINUATION SHEET II
3. The total number of shares and the par value, if any, of each class of stock
within the corporation is authorized as follows:
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WITHOUT PAR VALUE WITH PAR VALUE
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CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE AMOUNT
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Common Common 1,000 $.01
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Preferred Preferred
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ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a class, if
shares of another class are outstanding, the corporation must provide a
description of the preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other class of which
shares are outstanding and of each series then established within any class:
none
ARTICLE V
5. The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
none
ARTICLE VI
6. Other lawful provisions, if any, for the conduct and regulations of business
and affairs of the corporation, for its voluntary dissolution, or for limiting,
defining, or regulating the powers of the corporation, or of its directors or
stockholders, or of any class of stockholders:
See Continuation Sheet VI
ARTICLE VII
The effective date of organization of the corporation shall be the date approved
and filed by the Secretary of the Commonwealth. If a LATER effective date is
desired, specify such date which shall not be more than THIRTY days after the
date of filing.
ARTICLE VIII
THE INFORMATION CONTAINED IN ARTICLE VII IS NOT A PERMANENT PART OF THE ARTICLES
OF ORGANIZATION.
a. The street address (POST OFFICE BOXES ARE NOT ACCEPTABLE) of the principal
office of the corporation IN MASSACHUSETTS is:
80A TURNPIKE ROAD, WESTBORO, MASSACHUSETTS 01581
b. The name, residential address and post office address of each director and
officer of the corporation is as follows:
NAME RESIDENTIAL POST OFFICE
ADDRESS ADDRESS
PRESIDENT: DENNIS PEDRA 80A Turnpike Road
Westboro, MA
01581
TREASURER: DENNIS PEDRA (same as above)
CLERK: DENNIS PEDRA (same as above)
DIRECTORS: DENNIS PEDRA (same as above)
c. The fiscal year (i.e., tax year) of the corporation shall end on the last day
of the month of:
DECEMBER
d. The name and business address of the resident agent, if any, of the
corporation is: N/A
ARTICLE IX
By-laws of the corporation have been duly adopted and the president, treasurer,
clerk and directors whose names are set forth above, have been duly elected.
IN WITNESS WHEREOF AND UNDER THE PAINS AND PENALTIES OF PERJURY, I/we, whose
signature(s) appear below as incorporator(s) and whose name(s) and business or
residential address(es) ARE CLEARLY TYPED OR PRINTED beneath each signature do
hereby associate with the intention of forming this corporation under the
provisions of General Laws, Chapter 156B and do hereby sign these Articles of
Organization as incorporator(s) this 15th day of April, 1998.
/s/ Leslie Martello-Loughlin
Leslie Martello-Loughlin
100 Federal Street, 33rd Floor
Boston, Massachusetts 02110
CONTINUATION SHEET II
ARTICLE II
THE PURPOSE OF THE CORPORATION IS TO ENGAGE IN THE FOLLOWING BUSINESS
ACTIVITIES:
To carry on any business activity permitted under the Massachusetts
General Corporation Law; and to manufacture, buy, sell, import, export, purchase
and sell antiques, furniture, architectural and other objects and to
manufacture, buy, sell, import, export, distribute and generally deal at
wholesale and/or retail in all kinds of products, materials, fixtures,
furniture, machinery, equipment and apparatus of every nature whatsoever having
to do with the carrying on of the aforesaid business.
To apply for, purchase, or in any manner to acquire, outright or by way
of lease, license or otherwise, patents, trademarks, trade names, copyrights,
secret processes, inventions, formulae and improvements of any and every nature
which may be necessary, convenient, incidental or advantageous to the
corporation or for effecting any of its purposes; and to sell, transfer, grant
or license the same to others.
To construct, lease, purchase or otherwise acquire real estate and
personal property of any nature or any interest therein without limit as to
amount or value, reasonably necessary or convenient for affecting or furthering
any or all of the purposes or powers of the corporation. To purchase, lease or
otherwise acquire, in whole or in part, as a going concern or otherwise, the
business goodwill, rights, franchises, stocks, bonds or other securities, issued
by, and the property of every kind, and assume the whole or any part of the
liabilities of any person, corporation or other entity engaged in or authorized
to conduct any business identical with or similar to any business authorized to
be conducted by this corporation or owning property necessary or suitable for
its purposes and to exercise all powers necessary or incidental to the conduct
of such business. To hold, own, use, manage, operate, improve, lease, license,
mortgage, sell, dispose of or otherwise deal with all or any part of the
property of the corporation or any interest therein.
Insofar as may be permitted by law, to borrow money or otherwise incur
indebtedness or liability for effecting any of its corporate purposes or powers;
to make, accept, endorse, execute and issue promissory notes, bills of exchange,
bonds, debentures or other obligations from time to time for the purchase of
property, or powers for effecting any of its corporate purposes or powers; and,
if deemed proper, to secure the payment of any such obligations by mortgage,
pledge, deed of trust, or other hypothecation of any or all of the property of
the corporation. Insofar as may be permitted by law, to purchase or otherwise
acquire sales of its capital stock or its bonds, debentures or other
obligations, to hold, re-issue, re-sell, exchange, mortgage, pledge,
hypothecate, dispose of, cancel, retire or redeem the same.
Insofar as may be permitted by law, to enter into, make, perform and
carry out contracts of any kind with, and to act as agent or accommodation
maker, for any person, firm, association, corporation or other entity, whether
private, public, quasi-public or municipal, or body politic, whether foreign or
domestic, and with and for any domestic or foreign state or government or
territory or colony thereof. To conduct its business in all branches, so far as
permitted by law in the Commonwealth of Massachusetts, and in any other
commonwealth or state in or of the Untied States, and in any territory,
district, dependency, colony or possession thereof, and in any foreign country,
and to maintain offices and agencies in any part of the world, either within or
without the Commonwealth of Massachusetts, and to purchase, hold, mortgage,
convey, lease or otherwise dispose of and deal with real and personal property
in any such place or places.
In furtherance and not in limitation of these purposes and powers to do
any and all things and exercise any and all powers necessary, convenient or
advisable to accomplish one or more of the purposes of the corporation, or which
shall at any time appear to be for the benefit of the corporation in connection
therewith, which may now or hereafter be lawful for the corporation to do or
exercise under and in pursuance of the laws of the Commonwealth of
Massachusetts.
CONTINUATION SHEET VI
ARTICLE VI
OTHER LAWFUL PROVISIONS, IF ANY, FOR THE CONDUCT AND REGULATION OF BUSINESS AND
AFFAIRS OF THE CORPORATION, OF ITS VOLUNTARY DISSOLUTION, OR FOR LIMITING,
DEFINING, OR REGULATING THE POWERS OF THE CORPORATION, OR OF ITS DIRECTORS OR
STOCKHOLDERS, OR OF ANY CLASS OF STOCKHOLDERS:
The Board of Directors may make, amend or repeal the by-laws in whole
or in part, except with respect to any provision thereof which by law or the
by-laws requires action by the stockholders.
Meetings of the stockholders of the Corporation may be held anywhere in
the United States.
No stockholder shall have any right to examine any property or any
books, accounts or other writings of the Corporation if there is reasonable
ground for the belief that such examination will for any reason be adverse to
the interests of the Corporation. A vote of the Board of Directors refusing
stockholder permission to make such examination and setting forth that in the
opinion of the Board of Directors such examination would be adverse to the
interests of the Corporation shall be prima facie evidence that such examination
would be adverse to the interests of the Corporation. Every such examination
shall be subject to such reasonable regulations as the directors may establish
in regard thereto.
The Corporation may be a member of a limited liability company and/or a
partner in a partnership or other business enterprise the purpose of which would
be a permissible purpose for the Corporation if it were acting on its own.
Each director and officer of the Corporation shall, in the performance
of his or her duties, be protected in relying in good faith upon the books of
account of the Corporation, reports made to the Corporation by any of its
officers or employees or by counsel, accountants or other experts or consultants
selected with reasonable care by the directors, or upon other records of the
Corporation.
No director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
notwithstanding any provision of law imposing such liability; provided, however,
that to the extent provided by applicable law, this provision shall not
eliminate 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 Sections 61 or 62 or successor provisions of the
Massachusetts Business Corporation Law or (iv) for any transaction from which
the director derived an improper personal benefit.
The Board of Directors may, by the affirmative vote required in the
Corporation's ByLaws, indemnify the officers, employees and other agents of the
Corporation, and persons who serve at its request as directors, officers,
employees or other agents of another organization, or who serve at its request
in any capacity with respect to any employee benefit plan, in accordance with
the provisions of Section 67 (as amended) of the Massachusetts Business
Corporation Law.
FEDERAL IDENTIFICATION
NO. 04-3421491
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Fee: $250.00
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF MERGER OF PARENT AND SUBSIDIARY CORPORATIONS
(GENERAL LAWS, CHAPTER 156B, SECTION 82)
I, DENNIS PEDRA , President
and , Clerk
of NERC ACQUISITION CORP. ,
organized under the laws of Massachusetts and herein called the parent
corporation, certify as follows:
1. That the subsidiary corporation(s) to be merged into the parent corporation
is/are:
NAME STATE OF ORGANIZATION DATE OF ORGANIZATION
Bertucci's, Inc. Massachusetts January 15, 1987
2. The parent corporation, at the date of the vote, owned not less than ninety
percent (90%) of the outstanding shares of each class of stock of the subsidiary
corporation or corporations with which it has voted to merge.
ITEM 3 BELOW MAY BE DELETED IF ALL THE CORPORATIONS ARE ORGANIZED UNDER THE LAWS
OF MASSACHUSETTS AND IF GENERAL LAWS, CHAPTER 156B IS APPLICABLE TO THEM.
3. That in the case of each of the above named corporations, the laws of the
state of its organization, if other than Massachusetts, permit the merger herein
described, and that all action required under the laws of each such state in
connection with this merger has been duly taken.
4. That by unanimous written consents dated 5/13/98 and 7/21/98of the directors
of the parent corporation, the following vote, pursuant to General Laws, Chapter
156B, Section 82, Subsection (a) was duly adopted:
See Continuation Sheet 4
CONTINUATION SHEET 4
RESOLUTIONS ADOPTED MAY 13, 1998
RESOLVED: That the Company be, and hereby is, authorized, empowered and
directed to enter into, and perform in accordance with the terms of,
an Agreement and Plan of Merger by and among the Company, NE
Restaurant Company, Inc., a Delaware corporation (the "Parent"), and
Bertucci's, Inc., a Massachusetts corporation ("Bertucci's"), in
substantially the form attached as Exhibit A hereto (the "Merger
Agreement"); and that the proper officers of the Company be, and each
of them hereby is, authorized, empowered and directed to execute and
deliver the Merger Agreement, in the name and on behalf of the
Company, with such changes or amendments thereto as may be approved
by the proper officer(s) executing the same, such approval to be
conclusively evidenced by the execution by such officer(s).
RESOLVED: That the proper officers of the Company be, and each of them acting
alone hereby is, authorized and empowered to determine, on behalf of
the Company, whether the conditions to the Company's obligations
under the Merger Agreement have been satisfied, or to waive such
conditions as such proper officers may deem necessary, appropriate or
advisable in order to effect the merger of the Company with and into
Bertucci's, or the merger of Bertucci's with and into the Company, as
provided in the Merger Agreement (the "Merger"), the taking of such
action to be conclusive evidence of such approval.
RESOLVED: That, in the event that the Offer is consummated and upon
satisfaction or waiver of the conditions to the Merger in accordance
with the Merger Agreement, the Company shall consummate the Merger,
in accordance with the terms of the Merger Agreement.
RESOLVED: That the Merger shall be effective upon the filing of Articles of
Merger with the Secretary of State of the Commonwealth of
Massachusetts.
RESOLUTION ADOPTED JULY 21, 1998
RESOLVED: That the Company be, and hereby is, authorized, empowered and
directed to prepare and file Articles of Merger with the Secretary of
State of the Commonwealth of Massachusetts in order to consummate the
Merger of Bertucci's with and into the Company, in accordance with
the terms of the Merger Agreement and Section 82 of the MBCL, and
take any and all other actions in connection therewith that the
proper officers of the Company consider necessary or appropriate,
including, without limitation, the payment of any and all filing
fees; and that the effective date of the Merger shall be the date of
filing of such Articles of Merger with the Secretary of State of the
Commonwealth of Massachusetts (the "Effective Date").
5. The effective date of the merger shall be the date approved and filed by the
Secretary of the Commonwealth. If a later effective date is desired, specify
such date. which shall not be more than thirty days after the date of filing:
Section 6 below may be deleted if the parent corporation is organized under the
laws of Massachusetts.
6. The parent corporation hereby agrees that it may be sued in the Commonwealth
of Massachusetts for any prior obligation of any corporation organized under the
laws of Massachusetts with which it has merged, and any obligation hereafter
incurred by the parent corporation, including the obligation created by General
Laws, Chapter 156B, Section 82, Subsection (e), so long as any liability remains
outstanding against the parent corporation in the Commonwealth of Massachusetts,
and it hereby irrevocably appoints the Secretary of the Commonwealth as its
agent to accept service of process in any action for the enforcement of any such
obligations, including taxes, in the same manner as provided in Chapter 181.
SIGNED UNDER THE PENALTIES OF PERJURY, this 21st day of July, 1998
/S/ DENNIS PEDRA , President
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/S/ DENNIS PEDRA , Clerk
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FEDERAL IDENTIFICATION
NO. 04-3421491
THE COMMONWEALTH OF MASSACHUSETTS
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
CERTIFICATE OF CORRECTION
(GENERAL LAWS, CHAPTER 156B, SECTION 6A)
1. Exact name of corporation: NERC ACQUISITION CORP.
2. Document to be corrected: ARTICLES OF ORGANIZATION
3. The above mentioned document was filed with the Secretary of the
Commonwealth on
APRIL 15 , 1998
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4. Please state the inaccuracy or defect in said document: THERE ARE WORDS
MISSING FROM THE FIRST LINE OF THE FIRST PARAGRAPH OF THE PURPOSES CLAUSE. THE
FIRST LINE READS "TO MANUFACTURE..."
5. Please state corrected version of the document:
THE FIRST LINE OF THE FIRST PARAGRAPH SHOULD READ:
"TO CARRY ON ANY BUSINESS ACTIVITY PERMITTED UNDER THE MASSACHUSETTS
GENERAL CORPORATION LAW; AND TO MANUFACTURE..."
NOTE: THIS CORRECTION SHOULD BE SIGNED BY THE PERSON(S) REQUIRED BY LAW TO
SIGN THE ORIGINAL DOCUMENT.
SIGNED UNDER THE PENALTIES OF PERJURY, this 23RD day of JUNE , 1998,
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- ------------------------------------------,
------------------------- /*Incorporator(s).
Leslie Martello-Loughlin, Incorporator
*DELETE THE INAPPLICABLE WORDS.
NOTE: IF THE INACCURACY OR DEFECT TO BE CORRECTED IS NOT APPARENT ON THE FACE
OF THE DOCUMENT, MINUTES OF THE MEETING SUBSTANTIATING THE ERROR MUST
BE FILED WITH THE CERTIFICATE. ADDITIONAL INFORMATION MAY BE PROVIDED
ON SEPARATE 8 1/2 X 11 SHEETS OF WHITE PAPER WITH A LEFT MARGIN OF AT
LEAST 1 INCH.
FEDERAL IDENTIFICATION NO. 04-3421491
THE COMMONWEALTH OF MASSACHUSETTS
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(GENERAL LAWS, CHAPTER 156B, SECTION 72)
I, Dennis Pedra, President and Clerk of NERC Acquisition Corp., located at 80A
Turnpike Road, Westboro, Massachusetts 01581 certify that these Articles of
Amendment affecting articles numbered:
Article I of the Articles of Organization were duly adopted at a
meeting held on July 21, 1998, by vote of:
100 shares of common of 100 shares outstanding, being at least a
majority of each type, class or series outstanding and entitled to vote thereon:
Article I is hereby amended by changing the name of the corporation to:
Bertucci's, Inc.
The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a LATER effective date not more than THIRTY DAYS after such filing,
in which event the amendment will become effective on such later date.
Later effective date: ____________________________.
SIGNED UNDER THE PENALTIES OF PERJURY, this ____ day of July, 1998.
/s/ Dennis Pedra
Dennis Pedra, President
/s/ Dennis Pedra
Dennis Pedra, Clerk