Attached files
| file | filename |
|---|---|
| 10-K - FORM 10-K - Brookdale Senior Living Inc. | form10-k.htm |
| EX-23 - CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM - Brookdale Senior Living Inc. | exhibit23.htm |
| EX-32 - CERTIFICATION OF CEO AND CFO - Brookdale Senior Living Inc. | exhibit32.htm |
| EX-31.2 - CFO CERTIFICATION - Brookdale Senior Living Inc. | exhibit31_2.htm |
| EX-31.1 - CEO CERTIFICATION - Brookdale Senior Living Inc. | exhibit31_1.htm |
| EX-10.29 - CREDIT AGREEMENT - Brookdale Senior Living Inc. | exhibit10_29.htm |
| EX-21 - SUBSIDIARIES OF THE REGISTRANT - Brookdale Senior Living Inc. | exhibit21.htm |
EXHIBIT
3.1
(Restated
electronically for SEC filing purposes only)
AMENDED AND
RESTATED
CERTIFICATE OF
INCORPORATION
OF
BROOKDALE SENIOR LIVING
INC.
The
undersigned, Deborah C. Paskin, certifies that she is the Secretary of Brookdale
Senior Living Inc., a corporation organized and existing under the laws of the
State of Delaware (the "Corporation"), and does hereby further certify as
follows:
|
(1)
|
The
name of the Corporation is Brookdale Senior Living
Inc.
|
|
(2)
|
The
name under which the Corporation was originally incorporated was Brookdale
Senior Living Inc. and the original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware
on June 28, 2005.
|
|
(3)
|
This
Restated Certificate of Incorporation was duly adopted in accordance with
the provisions of Sections 228, 242 and 245 of the General Corporation Law
of the State of Delaware.
|
|
(4)
|
The
text of the Restated Certificate of Incorporation of the Corporation as
amended hereby is restated to read in its entirety, as
follows:
|
ARTICLE
ONE
The name
of the corporation is Brookdale Senior Living Inc. (the
"Corporation").
ARTICLE
TWO
The
address of the Corporation's registered office in the State of Delaware is 1209
Orange Street, in the City of Wilmington, County of New Castle
19801. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE
THREE
The
nature of the business or purposes to be conducted or promoted is to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware, as the same may be amended and
supplemented from time to time, or any successor thereto ("Delaware Corporation
Law").
ARTICLE
FOUR
PART
A. AUTHORIZED SHARES
1. NUMBER OF AUTHORIZED
SHARES. The total number of shares of Capital Stock (as
defined below) which the Corporation has authority to issue is 250,000,000
shares, consisting of:
a. 200,000,000
shares of Common Stock, par value $0.01 per share (the "Common Stock");
and
b. 50,000,000
shares of Preferred Stock, par value $0.01 per share (the "Preferred
Stock").
Shares of
Common Stock and Preferred Stock will have the rights, preferences and
limitations separately set forth below. As used in this certificate
of incorporation of the Corporation, as amended and restated from time to time
(this "Certificate of Incorporation"), "Capital Stock" means all classes or
series of stock of the Corporation, including, without limitation, Common Stock
and Preferred Stock.
2. REGISTRATION OF
TRANSFERS. The Corporation will keep at its principal office
(or such other place as the Corporation reasonably designates) a register for
the registration of shares of Capital Stock. Upon the surrender at
such place of any certificate representing shares of Capital Stock, the
Corporation will, at the request of the registered holder of such certificate,
execute and deliver a new certificate or certificates in exchange therefor
representing in the aggregate the number of shares of the class represented by
the surrendered certificate, and the Corporation forthwith will cancel such
surrendered certificate. Each such new certificate will be registered
in such name and will represent such number of shares of such class as is
requested by the holder of the surrendered certificate and will be substantially
identical in form to the surrendered certificate. The issuance of new
certificates will be made without charge to the holders of the surrendered
certificates for any issuance tax in respect thereof or other cost incurred by
the Corporation in connection with such issuance.
3. REPLACEMENT. Upon
receipt of evidence reasonably satisfactory to the Corporation (an affidavit of
the registered holder being satisfactory) of the ownership and the loss, theft,
destruction or mutilation of any certificate evidencing one or more shares of
Capital Stock, and in the case of any such loss, theft or destruction, upon
receipt of indemnity reasonably satisfactory to the Corporation (provided that
if the holder is a financial institution or other institutional investor then
its own agreement will be satisfactory) or, in the case of any such mutilation
upon surrender of such certificate, the Corporation will (at its expense)
execute and deliver in lieu of such certificate a new certificate of like kind
representing the number of shares of such class represented by such lost,
stolen, destroyed or mutilated certificate and dated the date of such lost,
stolen, destroyed or mutilated certificate.
2
PART
B. PREFERRED STOCK
Shares of
Preferred Stock may be issued from time to time in one or more classes or
series. The board of directors of the Corporation (the "Board of
Directors") is hereby authorized to provide for the issuance of all or any
shares of Preferred Stock, and to fix for each class or series thereof such
voting powers, full or limited or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights
and such qualifications, limitations or restrictions thereof, as shall be stated
and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the issuance of such class or series,
including, without limitation, the authority to provide that any such class
or series may be (i) subject to redemption at such time or times and at such
price or prices; (ii) entitled to receive dividends (which may be cumulative or
non-cumulative) at such rates, on such conditions, and at such times, and
payable in preference to, or in such relation to, the dividends payable on any
other class or classes or any other series; (iii) entitled to such rights
upon the dissolution of, or upon any distribution of the assets of, the
Corporation; or (iv) convertible into, or exchangeable for, shares of any
other class or classes of Capital Stock, or of any other series of the same or
any other class or classes of Capital Stock, of the Corporation at such price or
prices or at such rates of exchange and with such adjustments; in the case of
each of the foregoing, all as may be stated in such resolution or
resolutions.
PART
C. COMMON STOCK
All
shares of Common Stock will be identical in all respects and will entitle the
holders of such shares to the same rights and privileges, subject to the same
qualifications, limitations and restrictions. The holders of Common
Stock will be entitled to vote in the election of directors and on all other
matters submitted to a vote of the Corporation's stockholders, with each holder
of Common Stock being entitled to one vote for each share of Common Stock held
by such holder.
ARTICLE
FIVE
The
Corporation is to have perpetual existence.
ARTICLE
SIX
In
furtherance and not in limitation of the powers conferred by statute, the Board
of Directors is expressly authorized to make, amend, alter or repeal the bylaws
of the Corporation, as amended and restated from time to time (the
"Bylaws"). The affirmative vote of at least a majority of the whole
Board of Directors shall be required to adopt, amend, alter or repeal the
Bylaws. The Bylaws also may be adopted, amended, altered or repealed
by the affirmative vote of the holders of at least sixty-six and two-thirds
percent (66.67%) of the voting power of the then issued and outstanding shares
of Capital Stock that are entitled to vote generally in the election of
directors (the "Voting Shares").
3
ARTICLE
SEVEN
PART
A. MEETINGS OF STOCKHOLDERS; ETC.
Meetings
of stockholders may be held within or without the State of Delaware, as the
Bylaws may provide. Unless otherwise required by law, special
meetings of stockholders, for any purpose or purposes, may be called by either
(i) the Chairman of the Board of Directors, if there is one, (ii) the Chief
Executive Officer, if there is one, or (iii) the Board of
Directors. If, and for so long as, the Significant Stockholders (as
defined in Part A of Article EIGHT) and their respective Affiliates (as defined
in Part A of Article EIGHT), collectively, beneficially own at least fifty
percent (50%) of the then issued and outstanding Voting Shares, then any
authorized officer may call a special meeting at the request in writing of the
stockholders holding a majority of the voting power of the then issued and
outstanding Voting Shares. At any time after the Significant
Stockholders and their respective Affiliates cease, collectively, to
beneficially own at least fifty percent (50%) of the then issued and outstanding
Voting Shares, then the ability of the stockholders to call or cause a special
meeting of stockholders to be called is hereby specifically
denied. The books of the Corporation may be kept 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 Bylaws.
PART
B. ACTION BY WRITTEN CONSENT
If, and
for so long as, the Significant Stockholders (as defined in Part A of Article
EIGHT) and their respective Affiliates (as defined in Part A of Article EIGHT),
collectively, beneficially own at least fifty percent (50%) of the then issued
and outstanding Voting Shares, any action required or permitted by the Delaware
Corporation Law to be taken at a stockholders' meeting may be taken without a
meeting and without prior notice if the action is taken by the written consent
of stockholders who would be entitled to vote at a meeting of holders of
outstanding shares and who have voting power to cast not less than the minimum
number of votes that would be necessary to authorize or take the action at a
meeting at which all stockholders entitled to vote thereon were present and
voted. At any time after the Significant Stockholders and their
respective Affiliates cease, collectively, to beneficially own at least fifty
percent (50%) of the then issued and outstanding Voting Shares, then no action
required or permitted by the Delaware Corporation Law to be taken at a
stockholders' meeting may be taken without a meeting or without prior
notice.
ARTICLE
EIGHT
PART
A. DEFINITIONS
For
purposes of this Article EIGHT, the following definitions shall
apply:
"Affiliate"
means, with respect to a given person, any other person that, directly or
indirectly, controls, is controlled by or is under common control with, such
person; provided, however, that for
purposes of this definition and this Article EIGHT, none of (i) the Brookdale
Entities and their Affiliates, on the one
4
hand, or
(ii) the Significant Stockholders and their respective Affiliates, on the other
hand, shall be deemed to be "Affiliates" of one another. For purposes
of this definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with") as applied to any person, means
the possession, directly or indirectly, of beneficial ownership of, or the power
to vote, forty percent (40%) or more of the securities having voting power for
the election of directors (or other persons acting in similar capacities) of
such person or the power otherwise to direct or cause the direction of the
management and policies of such person, whether through the ownership of voting
securities, by contract or otherwise.
"Brookdale
Entities" means the Corporation and its Subsidiaries, and "Brookdale Entity"
shall mean any of the Brookdale Entities.
"corporate
opportunity" shall include, but not be limited to, business opportunities which
the Corporation is financially able to undertake, which are, from their nature,
in the line of the Corporation's business, are of practical advantage to it and
are ones in which the Corporation has an interest or a reasonable expectancy,
and in which, by embracing the opportunities, the self-interest of any of the
Significant Stockholders or their respective Affiliates or their officers or
directors will be brought into conflict with that of any of the Brookdale
Entities or their Affiliates.
"Governmental
Entity" shall mean any national, state, provincial, municipal, local or foreign
government, any court, arbitral tribunal, administrative agency or commission or
other governmental or regulatory authority, commission or agency or any
non-governmental, self-regulatory authority, commission or agency.
"Judgment"
shall mean any order, writ, injunction, award, judgment, ruling or decree of any
Governmental Entity.
"Law"
shall mean any statute, law, code, ordinance, rule or regulation of any
Governmental Entity.
"Lien"
shall mean any pledge, claim, equity, option, lien, charge, mortgage, easement,
right-of-way, call right, right of first refusal, "tag"- or "drag"- along right,
encumbrance, security interest or other similar restriction of any kind or
nature whatsoever.
"Restriction"
with respect to any capital stock, partnership interest, membership interest in
a limited liability company or other equity interest or security, shall mean any
voting or other trust or agreement, option, warrant, preemptive right, right of
first offer, right of first refusal, escrow arrangement, proxy, buy-sell
agreement, power of attorney or other contract, any Law, license, permit or
Judgment that, conditionally or unconditionally, (i) grants to any person the
right to purchase or otherwise acquire, or obligates any person to sell
or
5
otherwise
dispose of or issue, or otherwise results or, whether upon the occurrence of any
event or with notice or lapse of time or both or otherwise, may result in any
person acquiring, (A) any of such capital stock, partnership interest,
membership interest in a limited liability company or other equity interest or
security, (B) any of the proceeds of, or any distributions paid or that are or
may become payable with respect to, any of such capital stock, partnership
interest, membership interest in a limited liability company or other equity
interest or security or (C) any interest in such capital stock, partnership
interest, membership interest in a limited liability company or other equity
interest or security or any such proceeds or distributions, (ii) restricts or,
whether upon the occurrence of any event or with notice or lapse of time or both
or otherwise, is reasonably likely to restrict the transfer or voting of, or the
exercise of any rights or the enjoyment of any benefits arising by reason of
ownership of, any such capital stock, partnership interest, membership interest
in a limited liability company or other equity interest or security or any such
proceeds or distributions or (iii) creates or, whether upon the occurrence of
any event or with notice or lapse of time or both or otherwise, is reasonably
likely to create a Lien or purported Lien affecting such capital stock,
partnership interest, membership interest in a limited liability company or
other equity interest or security, proceeds or distributions.
"Significant
Stockholders" means FIT-ALT Investor LLC, a Delaware limited liability company,
Fortress Brookdale Acquisition LLC, a Delaware limited liability company,
Fortress Investment Trust II, a Delaware business trust, Fortress Registered
Investment Trust, a Delaware business trust, Fortress Brookdale Investment Fund
LLC, a Delaware limited liability company, and Health Partners, a Bermuda
exempted partnership and, in each case, their respective Subsidiaries (other
than Subsidiaries that constitute Brookdale Entities), and "Significant
Stockholder" shall mean any of the Significant Stockholders.
"Subsidiary"
with respect to any person means: (i) a corporation, a majority in
voting power of whose capital stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly owned
by such person, by a Subsidiary of such person, or by such person and one or
more Subsidiaries of such person, without regard to whether the voting of such
capital stock is subject to a voting agreement or similar Restriction, (ii) a
partnership or limited liability company in which such person or a Subsidiary of
such person is, at the date of determination, (A) in the case of a partnership,
a general partner of such partnership with the power affirmatively to direct the
policies and management of such partnership or (B) in the case of a limited
liability company, the managing member or, in the absence of a managing member,
a member with the power affirmatively to direct the policies and management of
such limited liability company or (iii) any other person (other than a
corporation) in which such person, a Subsidiary of such person or such person
and one or more Subsidiaries of such person, directly or indirectly, at the date
of determination thereof, has (A) the power to elect or direct the election
of a majority of the members of the governing body of such person (whether or
not
6
such
power is subject to a voting agreement or similar restriction) or (B) in the
absence of such a governing body, a majority ownership interest.
PART
B. SIGNIFICANT STOCKHOLDERS, ETC.
In
anticipation and in recognition that:
a. the
Significant Stockholders or their respective Affiliates will be significant
stockholders of the Corporation;
b. directors,
officers and/or employees of the Significant Stockholders and their respective
Affiliates may serve as directors, officers and/or employees of the Brookdale
Entities and their Affiliates;
c. the
Brookdale Entities and their Affiliates, on the one hand, and the Significant
Stockholders and their respective Affiliates, on the other hand, may engage in
the same, similar or related lines of business and may have an interest in the
same, similar or related areas of corporate opportunities;
d. the
Brookdale Entities and their Affiliates, on the one hand, and the Significant
Stockholders and their respective Affiliates, on the other hand, may enter into,
engage in, perform and consummate contracts, agreements, arrangements,
transactions and other business relations; and
e. the
Brookdale Entities and their Affiliates will derive benefits therefrom and
through their continued contractual, corporate and business relations with the
Significant Stockholders and their respective Affiliates,
the
provisions of this Article EIGHT are set forth to regulate, define and guide, to
the fullest extent permitted by Law, the conduct of certain affairs of the
Brookdale Entities and their Affiliates as they may involve the Significant
Stockholders and their respective Affiliates and their officers and directors,
and the powers, rights, duties and liabilities of the Brookdale Entities and
their Affiliates and their officers, directors and stockholders in connection
therewith.
PART
C. RELATED BUSINESS ACTIVITIES, ETC.
Except as
the Significant Stockholders or their respective Affiliates, on the one hand,
and the Brookdale Entities or their Affiliates, on the other hand, may otherwise
agree in writing, the Significant Stockholders and their respective Affiliates
shall have the right to, and shall have no duty to abstain from exercising such
right to, (i) engage or invest, directly or indirectly, in the same, similar or
related business activities or lines of business as the Brookdale Entities or
their Affiliates, (ii) do business with any client, customer, vendor or lessor
of any of the Brookdale Entities or their Affiliates or (iii) employ or
otherwise engage any officer, director or employee of the Brookdale
Entities
7
or their
Affiliates, and, to the fullest extent permitted by Law, the Significant
Stockholders and their respective Affiliates and officers, directors and
employees thereof (subject to Part E of this Article EIGHT) shall not have or be
under any fiduciary duty, duty of loyalty nor duty to act in good faith or in
the best interests of the Corporation or its stockholders and shall not be
liable to the Corporation or its stockholders for any breach or alleged breach
thereof or for any derivation of any personal economic gain by reason of any
such activities of any of the Significant Stockholders or their respective
Affiliates or of any of their officer's, director's or employee's participation
therein.
PART
D. CORPORATE OPPORTUNITY, ETC.
Except as
the Significant Stockholders or their respective Affiliates, on the one hand,
and the Brookdale Entities or their Affiliates, on the other hand, may otherwise
agree in writing, if any of the Significant Stockholders or their respective
Affiliates, or any officer, director or employee thereof (subject to the
provisions of Part E of this Article EIGHT), acquires knowledge of a potential
transaction or matter that may be a corporate opportunity for any of the
Significant Stockholders or any of their Affiliates, none of the Brookdale
Entities or their Affiliates or any stockholder thereof shall have an interest
in, or expectation that, such corporate opportunity be offered to it or that it
be offered an opportunity to participate therein, and any such interest,
expectation, offer or opportunity to participate, and any other interest or
expectation otherwise due to the Corporation or any other Brookdale Entity with
respect to such corporate opportunity, is hereby renounced by the Corporation on
its behalf and on behalf of the other Brookdale Entities and their respective
Affiliates and stockholders in accordance with Section 122(17) of the Delaware
Corporation Law. Accordingly, subject to Part E of this Article EIGHT
and except as the Significant Stockholders or their respective Affiliates may
otherwise agree in writing, (i) none of the Significant Stockholders or their
respective Affiliates or any officer, director or employee thereof will be under
any obligation to present, communicate or offer any such corporate opportunity
to the Brookdale Entities or their Affiliates and (ii) any of the
Significant Stockholders and their respective Affiliates shall have the right to
hold any such corporate opportunity for its own account, or to direct,
recommend, sell, assign or otherwise transfer such corporate opportunity to any
person or persons other than the Brookdale Entities and their Affiliates, and,
to the fullest extent permitted by Law, the Significant Stockholders and their
respective Affiliates and officers, directors and employees thereof (subject to
Part E of this Article EIGHT) shall not have or be under any fiduciary duty,
duty of loyalty or duty to act in good faith or in the best interests of the
Corporation, the other Brookdale Entities and their respective Affiliates and
stockholders and shall not be liable to the Corporation, the other Brookdale
Entities or their respective Affiliates and stockholders for any breach or
alleged breach thereof or for any derivation of personal economic gain by reason
of the fact that any of the Significant Stockholders or their respective
Affiliates or any of their officers, directors or employees pursues or acquires
the corporate opportunity for itself, or directs, recommends, sells, assigns or
otherwise transfers the corporate opportunity to another person, or any of the
Significant Stockholders or their respective Affiliates or any of their
officers, directors or employees does not present, offer or communicate
information regarding the corporate opportunity to the Brookdale Entities or
their Affiliates.
8
PART
E. DIRECTORS, OFFICERS AND EMPLOYEES
Except as
the Significant Stockholders or their respective Affiliates, on the one hand,
and the Brookdale Entities or their Affiliates, on the other hand, may otherwise
agree in writing, in the event that a director or officer of any of the
Brookdale Entities or their Affiliates who is also a director, officer or
employee of any of the Significant Stockholders or their respective Affiliates
acquires knowledge of a potential transaction or matter that may be a corporate
opportunity or is offered a corporate opportunity, if (i) such person acts in
good faith and (ii) such knowledge of such potential transaction or matter was
not obtained solely in connection with, or such corporate opportunity was not
offered to such person solely in, such person's capacity as director or officer
of any of the Brookdale Entities or their Affiliates, then (A) such director,
officer or employee, to the fullest extent permitted by Law, (1) shall be deemed
to have fully satisfied and fulfilled such person's fiduciary duty to the
Corporation, the other Brookdale Entities and their respective Affiliates and
stockholders with respect to such corporate opportunity, (2) shall not have
or be under any fiduciary duty to the Corporation, the other Brookdale Entities
and their respective Affiliates and stockholders and shall not be liable to the
Corporation, the other Brookdale Entities or their respective Affiliates and
stockholders for any breach or alleged breach thereof by reason of the fact that
any of the Significant Stockholders or their respective Affiliates pursues or
acquires the corporate opportunity for itself, or directs, recommends, sells,
assigns or otherwise transfers the corporate opportunity to another person, or
any of the Significant Stockholders or their respective Affiliates or such
director, officer or employee does not present, offer or communicate information
regarding the corporate opportunity to the Brookdale Entities or their
Affiliates, (3) shall be deemed to have acted in good faith and in a manner
such person reasonably believes to be in, and not opposed to, the best interests
of the Corporation and its stockholders for the purposes of Article NINE and the
other provisions of this Certificate of Incorporation and (4) shall not have any
duty of loyalty to the Corporation, the other Brookdale Entities and their
respective Affiliates and stockholders or any duty not to derive any personal
benefit therefrom and shall not be liable to the Corporation, the other
Brookdale Entities or their respective Affiliates and stockholders for any
breach or alleged breach thereof for purposes of Article NINE and the other
provisions of this Certificate of Incorporation as a result thereof and (B) such
potential transaction or matter that may be a corporate opportunity, or the
corporate opportunity, shall belong to the applicable Significant Stockholder or
respective Affiliates thereof (and not to any of the Brookdale Entities or
Affiliates thereof).
PART
F. AGREEMENTS WITH SIGNIFICANT STOCKHOLDERS
The
Brookdale Entities and their Affiliates may from time to time enter into and
perform one or more agreements (or modifications or supplements to pre-existing
agreements) with the Significant Stockholders and their respective Affiliates
pursuant to which the Brookdale Entities and their Affiliates, on the one hand,
and the Significant Stockholders and their respective Affiliates, on the other
hand, agree to engage in transactions of any kind or nature with each other
and/or agree to compete, or to refrain from competing or to limit or restrict
their competition, with each other, including to allocate and to cause their
respective directors, officers and employees
9
(including
any who are directors, officers or employees of both) to allocate corporate
opportunities between or to refer corporate opportunities to each
other. Subject to Part E of this Article EIGHT, except as otherwise
required by Law, and except as the Significant Stockholders or their respective
Affiliates, on the one hand, and the Brookdale Entities or their Affiliates, on
the other hand, may otherwise agree in writing, no such agreement, or the
performance thereof by the Brookdale Entities and their Affiliates, or the
Significant Stockholders or their respective Affiliates, shall be considered
contrary to or inconsistent with any fiduciary duty to the Corporation, any
other Brookdale Entity or their respective Affiliates and stockholders of any
director or officer of the Corporation, any other Brookdale Entity or any
Affiliate thereof who is also a director, officer or employee of any of the
Significant Stockholders or their respective Affiliates or to any stockholder
thereof. Subject to Part E of this Article EIGHT, to the fullest
extent permitted by Law, and except as the Significant Stockholders or their
respective Affiliates, on the one hand, and the Brookdale Entities or their
Affiliates, on the other hand, may otherwise agree in writing, none of the
Significant Stockholders or their respective Affiliates shall have or be under
any fiduciary duty to refrain from entering into any agreement or participating
in any transaction referred to in this Part F of Article EIGHT and no director,
officer or employee of the Corporation, any other Brookdale Entity or any
Affiliate thereof who is also a director, officer or employee of any of the
Significant Stockholders or their respective Affiliates shall have or be under
any fiduciary duty to the Corporation, the other Brookdale Entities and their
respective Affiliates and stockholders to refrain from acting on behalf of any
of the Significant Stockholders or their respective Affiliates in respect of any
such agreement or transaction or performing any such agreement in accordance
with its terms.
PART
G. AMBIGUITY
For the
avoidance of doubt and in furtherance of the foregoing, nothing contained in
this Article EIGHT amends or modifies, or will amend or modify, in any respect,
any written contractual arrangement between the Significant Stockholders or any
of their Affiliates, on the one hand and the Brookdale Entities or any of their
Affiliates, on the other hand.
PART
H. TERMINATION
The
provisions of this Article EIGHT shall have no further force and effect on the
date that both (i) the Significant Stockholders and their respective Affiliates
cease to, collectively, beneficially own (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) shares of Capital Stock
representing in the aggregate twenty percent (20%) of the voting power of the
then issued and outstanding Voting Shares and (ii) no person who is a director
or officer of the Corporation or any of its Affiliates is also a director or
officer of any of the Significant Stockholders or their respective
Affiliates. In addition to any vote of the stockholders required by
this Certificate of Incorporation, until the expiration of this Article EIGHT
referred to in the immediately preceding sentence, the affirmative vote of
eighty percent (80%) of the voting power of the then issued and outstanding
Voting Shares, including the Voting Shares held by the Significant Stockholders
and their respective Affiliates, shall be
10
required
to alter, amend or repeal (including, without limitation, by merger or
otherwise) in a manner adverse to the interests of any of the Significant
Stockholders or their respective Affiliates or any of their officers, directors
or employees, or adopt any provision adverse to the interests of any of the
Significant Stockholders or their respective Affiliates or any of their
officers, directors or employees and inconsistent with, any provision of this
Article EIGHT.
PART
I. APPLICATION OF PROVISION, ETC.
This
Article EIGHT shall apply as set forth above except as otherwise provided by
Law. It is the intention of this Article EIGHT to take full advantage
of statutory amendments, the effect of which may be to specifically authorize or
approve provisions such as this Article EIGHT. No alteration,
amendment, termination, expiration or repeal of this Article EIGHT nor the
adoption of any provision of this Certificate of Incorporation inconsistent with
this Article EIGHT shall eliminate, reduce, apply to or have any effect on the
protections afforded hereby to any director, officer, employee or stockholder of
the Brookdale Entities or their Affiliates for or with respect to any
investments, activities or opportunities of which such director, officer,
employee or stockholder becomes aware prior to such alteration, amendment,
termination, expiration, repeal or adoption, or any matters occurring, or any
cause of action, suit or claim that, but for this Article EIGHT, would accrue or
arise, prior to such alteration, amendment, termination, expiration, repeal or
adoption.
ARTICLE
NINE
No
director shall be personally liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (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)
pursuant to Section 174 of the Delaware Corporation Law or (iv) for any
transaction from which the director derived an improper personal
benefit. Any repeal or modification of this Article NINE by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification with respect to acts or omissions occurring prior to such repeal
or modification.
ARTICLE
TEN
The
Corporation shall indemnify its directors and officers to the fullest extent
authorized or permitted by law, as now or hereafter in effect, and such right to
indemnification 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 such person's
heirs, executors and personal and legal representatives; provided, however, that except
for proceedings to enforce rights to indemnification, the Corporation shall not
be obligated to indemnify any director or officer (or such person's heirs,
executors or personal or legal representatives) in connection with a proceeding
(or part thereof) initiated by such person unless such proceeding (or part
thereof) was authorized or consented to by the Board of Directors.
11
The right
to indemnification conferred by this Article TEN shall include the right to be
paid by the Corporation the expenses incurred in defending or otherwise
participating in any proceeding in advance of its final
disposition. The Corporation may, to the extent authorized from time
to time by the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation similar to
those conferred in this Article TEN to directors and officers of the
Corporation. The indemnification and advancement of expenses provided for herein
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors, or
otherwise. Any repeal or modification of this Article TEN shall not
adversely affect any rights to indemnification and to the advancement of
expenses of a director or officer of the Corporation existing at the time of
such repeal or modification with respect to any acts or omissions occurring
prior to such repeal or modification.
ARTICLE
ELEVEN
The
Corporation shall have the power to purchase and maintain insurance on behalf of
any person who is or was or has agreed to become a director, officer, employee
or agent of the Corporation against any liability asserted against him or her
and incurred by him or her or on his or her behalf in such capacity, or arising
out of his or her status as such, whether or not the Corporation would have the
power to indemnify him or her against such liability.
ARTICLE
TWELVE
The
number of directors which constitute the whole Board of Directors shall be not
less than three (3) or more than nine (9). The exact number of
directors which shall constitute the whole Board of Directors shall be
determined from time to time by a resolution adopted by a majority of the Board
of Directors then in office. The directors shall be divided into
three classes, designated Class I, Class II and Class III. Each class
shall consist, as nearly as may be possible, of one-third of the total number of
directors constituting the entire Board of Directors. The term of the
Class I directors in office at the time of the filing of this Amended and
Restated Certificate of Incorporation shall terminate on the date of the 2008
annual meeting; the term of the Class II directors in office at the time of the
filing of this Amended and Restated Certificate of Incorporation shall terminate
on the date of the 2007 annual meeting; and the term of the Class III directors
in office at the time of the filing of this Amended and Restated Certificate of
Incorporation shall terminate on the date of the 2006 annual
meeting. At each succeeding annual meeting of stockholders beginning
in 2006, successors to the class of directors whose term expires at that annual
meeting 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. Directors need not be stockholders.
12
Except as
otherwise provided in the Bylaws, the directors shall be elected at the annual
meeting of the stockholders, and each director elected shall hold office until
the third succeeding meeting next after his election and until his successor is
duly elected and qualified or until his death or retirement or until he resigns
or is removed in the manner hereinafter provided. Directors shall be
elected by a plurality of the votes of the shares present in person or
represented by proxy and entitled to vote on the election of directors at any
annual or special meeting of stockholders. Such election shall be by
written ballot. Any director or the whole Board of Directors may be
removed from office at any time, but only for cause, and only by the affirmative
vote of the holders of at least eighty percent (80%) of the voting power of the
then issued and outstanding Voting Shares.
ARTICLE
THIRTEEN
The
Corporation expressly elects not to be governed by Section 203 of the Delaware
Corporation Law.
ARTICLE
FOURTEEN
The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Amended and Restated Certificate of Incorporation in the
manner now or hereafter prescribed herein and by the laws of the State of
Delaware, and all rights conferred upon stockholders herein are granted subject
to this reservation.
[Remainder of page left blank
intentionally]
13
IN
WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be signed on this 30th day
of September, 2005.
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BROOKDALE
SENIOR LIVING INC.
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By:
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/s/
Deborah C. Paskin
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Name:
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Deborah
C. Paskin
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Title:
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Secretary
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