EXHIBIT 3.1D
Certificate of Incorporation
of
CRITERION PROPERTY, INC.
FIRST: The name of the corporation is Criterion Property, Inc.
SECOND: The address of its registered office in the State of Delaware is
No. 229 South State Street in the City of Dover, County of Kent. The name of its
registered agent at such address is The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business or purposes to be conducted or promoted
is to carry on and to engage in any lawful business, act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware; and to possess and exercise all the powers and privileges granted by
the General Corporation Law of the State of Delaware or by any other law of the
State of Delaware or by this Certificate of Incorporation together with any
powers incidental thereto.
FOURTH: The total number of shares of all classes of stock which the
corporation shall have authority to issue is 1,000 shares of Common Stock, $.01
par value (the "Common Stock").
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of the Common Stock of the corporation.
4.1 Voting. The holders of shares of Common Stock are entitled to one vote
for each share held at all meetings of stockholders (and written actions in lieu
of meetings). There shall be no cumulative voting.
4.2 Dividends. Dividends may be declared and paid on the Common Stock from
funds lawfully available therefor when and as determined by the Board of
Directors.
-1-
4.3 Liquidation. Upon the dissolution or liquidation of the corporation,
whether voluntary or involuntary, holders of Common Stock will be entitled to
receive the net assets of the corporation available for distribution to its
stockholders.
FIFTH: The name and mailing address of the incorporator are
NAME MAILING ADDRESS
Bryan G. Tyson Sullivan & Worcester
One Post Office Square
Boston, Massachusetts 02109
SIXTH: The names and mailing addresses of the persons who are to serve as
directors until the first annual meeting of stockholders, or until their
successors are elected and qualify, are:
NAME MAILING ADDRESS
C. Richard Reese Schooner Capital Corporation
99 Bedford Street
Boston, Massachusetts 02111
Eugene B. Doggett Schooner Capital Corporation
99 Bedford Street
Boston, Massachusetts 02111
Jas. Murray Howe Sullivan & Worcester
One Post Office Square
Boston, Massachusetts 02109
SEVENTH: The corporation is to have perpetual existence.
EIGHTH: The stockholders of the corporation shall not be personally liable
for the payment of the corporation's debts to any extent whatever.
NINTH: The following additional provisions are inserted for the management
of the business and the conduct of the affairs of the corporation.
-2-
9.1 Except as otherwise provided in the Certificate of Incorporation or by
the By-Laws of the corporation as from time to time amended, the business and
affairs of the corporation shall be managed by its Board of Directors, and,
without limitation, the Board of Directors of the corporation is hereby
specifically authorized and empowered from time to time in its discretion:
(a) to make, alter, amend and repeal the By-Laws of the corporation; and
(b) to determine for any purpose and in any manner not inconsistent with
the other provisions of this Certificate of Incorporation the amount of the
gross assets, of the liabilities, of the net assets or of the net profits of the
corporation as the same exist or shall have existed at any time or for any
period or periods, and to create, increase, abolish or reduce any reserve or
reserves for accrued, accruing or contingent liabilities or expenses, including
taxes and other charges.
9.2 The Board of Directors in its discretion may submit any contract,
transaction or act for approval or ratification at any annual meeting of the
stockholders or at any meeting of the stockholders called for the purpose of
considering any such contract, transaction or act, and any contract, transaction
or act that shall be approved or be ratified by the vote of the holders of a
majority of the stock of the corporation which is represented in person or by
proxy at such meeting and entitled to vote thereat (provided that a lawful
quorum of stockholders be there represented in person or by proxy) shall be as
valid and as binding upon the corporation and upon all of the stockholders of
the corporation as though it had been approved or ratified by every stockholder
of the corporation.
9.3 Meetings of the stockholders may be held without the State of
Delaware, if the By-Laws so provide. The books of the corporation may be kept
(subject to any statutory provision) outside the State of Delaware at such place
or places as may be from time to time
-3-
designated by the Board of Directors or in the By-Laws of the corporation.
Elections of directors need not be by ballot unless the By-Laws shall otherwise
provide.
9.4 The corporation shall have power to indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, trustee,
employee or agent of another corporation, partnership, joint venture, trust or
other entity to the fullest extent permitted by law or any agreement, vote of
stockholders or directors or otherwise, or by any By-Law of this corporation,
but the adoption of any such By-Law shall not be deemed to be exclusive of any
other rights to indemnification any such person may be entitled to under any
law, agreement, vote of stockholders or directors or otherwise.
TENTH: Whenever a compromise or arrangement is proposed between the
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
-4-
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as 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.
ELEVENTH: No director shall be personally liable to the corporation or any
stockholder for monetary damages for breach of fiduciary duty as a director,
except, in addition to any and all other requirements for such liability, (i)
for any breach of such 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) to the extent
provided under Section 174 of Title 8 of the Delaware Code (relating to the
General Corporation Law of the State of Delaware) or any amendment thereto or
successor provision thereto, or (iv) for any transaction for which such director
derived an improper personal benefit. Neither the amendment nor repeal of this
Article ELEVENTH, nor the adoption of any provision of this certificate of
incorporation inconsistent with this Article ELEVENTH, shall eliminate or reduce
the effect of this Article ELEVENTH in respect of any matter occurring, or any
cause of action, suit or claim that, but for this Article ELEVENTH, would accrue
or arise, prior to such amendment, repeal, or adoption of an inconsistent
provision.
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.
-5-
I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this Certificate hereby declaring and certifying that
this is my act and deed and the facts herein stated are true, and accordingly
have hereunto set my hand this fourth day of November, 1988.
/s/ Bryan G. Tyson
------------------
Bryan G. Tyson
-6-