EXHIBIT 3.1.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FOUNTAIN VIEW, INC.
Fountain View, Inc., (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware, hereby does certify as follows:
1. This Corporation was originally incorporated under
the name "Fountain View Management, Inc.", and the original Certificate of
Incorporation of this Corporation was filed with the Secretary of State of
Delaware on July 14, 1997 (the "Original Certificate of Incorporation").
2. On October 2, 2001, the Corporation filed a petition
in the United States Bankruptcy Court for the Central District of California,
Los Angeles Division (the "Bankruptcy Court") seeking relief under Chapter 11 of
the United States Bankruptcy Code, 11 U.S.C. Section 101-1130 (the "Bankruptcy
Code").
3. This Amended and Restated Certificate of
Incorporation was duly adopted pursuant to a plan of reorganization confirmed by
an order of the Bankruptcy Court on July 10, 2003 in accordance with Section 303
of Title 8 of the General Corporation Law of the State of Delaware.
4. This Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation") restates and integrates and
further amends the Original Certificate of Incorporation, as heretofore amended
or supplemented.
5. The Certificate of Incorporation of this Corporation
shall be amended and restated to read in full as follows:
FIRST: The name of this Corporation is Fountain View, Inc.
SECOND: The address of the Corporation's registered office in
the State of Delaware is 9 East Loockerman Street, Suite 1B, Dover, Kent County,
Delaware 19901. The name of the Corporation's registered agent at such address
is National Registered Agents, Inc..
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which Corporations may be organized under the
Delaware General Corporation Law.
FOURTH: A description of each class and series of stock of the
Corporation and the voting rights, designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof is as follows:
1. Capital Stock. The Corporation shall have two classes
of capital stock (the "Capital Stock"): Common Stock, $0.01 par value per share
(the "Common Stock"), and Preferred Stock, $0.01 par value per share (the
"Preferred Stock").
(a) Number of Shares. The total authorized
number of shares of each class of Capital Stock is (i)
1,500,000 shares of Common Stock and (ii) 1,000,000 shares of
Preferred Stock, of which 15,000 shares have been designated
"Series A Preferred Stock".
(b) Preferred Stock. The Preferred Stock may
be issued from time to time in one or more series. The Board
of Directors of the Corporation (the "Board") is hereby
authorized, within the limitations and restrictions stated in
this Amended and Restated Certificate of Incorporation
("Certificate of Incorporation"), to determine or alter the
rights, preferences, powers, privileges and the restrictions,
qualifications and limitations granted to or imposed upon any
wholly unissued series of Preferred Stock, and the number of
shares constituting any such series and the designation
thereof; to increase or decrease the number of shares
constituting any such series; and to increase or decrease the
number of shares of any series subsequent to the issue of
shares of that series, but not below the number of shares of
such series as are then issued and outstanding, and if any
series shall be so decreased, the shares then constituting
such decrease shall resume the status which they had prior to
the adoption of the resolution originally fixing the number of
shares of such series.
(c) Prohibition of Non-Voting Capital Stock.
Notwithstanding anything to the contrary set forth in this
Certificate of Incorporation, the Corporation shall not issue
any nonvoting equity securities to the extent prohibited by
Section 1123 of the Bankruptcy Code; provided, however, that
this subsection 1(c) of this Article FOURTH (i) will have no
further force and effect beyond that required under Section
1123 of the Bankruptcy Code, (ii) will have such force and
effect, if any, only for so long as such section of the
Bankruptcy Code is in effect and applicable to the
Corporation, and (iii) in all events may be amended or
eliminated in accordance with such applicable law as from time
to time may be in effect.
2. Dividends and Other Distributions.
(a) Dividends on the Series A Preferred
Stock.
(i) Subject to the rights of
series of Preferred Stock which may from time to time
come into existence, the holders of Series A
Preferred Stock shall be entitled to receive, when,
as and if declared by the Board, out of funds legally
available therefor, a dividend at the annual rate of
12% of the Base Amount (as hereinafter defined) of
each share of Series A Preferred Stock from and
including the date of issuance of such share to and
including the day on which the Liquidation Value (as
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hereinafter defined) of such share is paid. Such
dividends shall accrue from day to day, whether or
not earned or declared, on each issued and
outstanding share of Series A Preferred Stock, and
shall be cumulative. The date on which the
Corporation initially issues any share of Series A
Preferred Stock will be deemed to be its "date of
issuance" regardless of the number of times transfer
of such share is made on the stock records of the
Corporation and regardless of the number of
certificates which may be issued to evidence such
share, provided, however, that all shares of Series A
Preferred Stock issued prior to the first Dividend
Reference Date (as hereinafter defined) shall be
deemed, for purposes of this Subsection (a), to have
been issued on March 27, 1998.
(ii) If declared by the Board,
dividends on each share of Series A Preferred Stock
shall be paid on each March 31, commencing March 31,
2004 (the "Dividend Reference Dates"), while such
share is outstanding.
(iii) Any dividends that accrue
on any share of Series A Preferred Stock during the
period ending upon such Dividend Reference Date that
are not paid on such Dividend Reference Date and that
have not previously been added to the Base Amount of
such share shall automatically be added to the Base
Amount of such share and will remain a part thereof
until such dividends are paid, at which time the Base
Amount shall be reduced by such payment.
(iv) The "Base Amount" of any
share of Series A Preferred Stock as of a particular
date shall be an amount equal to the sum of $1,000.00
plus any unpaid dividends on such share added to the
Base Amount of such share as provided above and not
thereafter paid.
(b) Dividends on Common Stock. The holders
of record of Common Stock shall be entitled to receive such
dividends ratably as may from time to time be declared by the
Board out of funds legally available therefor.
3. Voting Rights.
Subject to the rights of series of Preferred Stock which may
from time to time come into existence, at every meeting of the stockholders (or
for actions by written consent of stockholders), except as otherwise required by
law, on all matters to be voted on by the stockholders of the Corporation, the
following provisions shall apply:
(a) Voting as a Single Class. Except as
otherwise required by law, the holders of the Common Stock and
Series A Preferred Stock shall vote together as a single class
on all matters presented to the stockholders.
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(b) Voting by Series A Preferred Stock. In
any matter to be voted on by the holders of the Series A
Preferred Stock, each holder of Series A Preferred Stock shall
have one tenth of one vote for each such share held by such
holder.
(c) Voting by Common Stock. In any matter to
be voted on by the holders of the Common Stock, each holder of
Common Stock shall have one vote for each such share held by
such holder.
4. Liquidation.
(a) Series A Preferred Stock. Subject to the
rights of any series of Preferred Stock which may from time to
time come into existence, upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or
involuntary, the holders of Series A Preferred Stock shall be
entitled, before any distribution or payment is made upon any
shares of Common Stock, to be paid in cash, in respect of each
share of Series A Preferred Stock held by such holder, an
amount equal to the Base Amount of such share on such date,
plus all unpaid dividends accrued on such share from the
previous Dividend Reference Date through the close of business
on the date of payment (the "Liquidation Value"). If upon such
liquidation, dissolution or winding up, the assets to be
distributed among the holders of the shares of Series A
Preferred Stock shall be insufficient to permit payment to the
holders thereof of such amounts, then all of the assets of the
Corporation then remaining and legally available for
distribution shall be distributed ratably among the holders of
the shares of Series A Preferred Stock.
(b) Common Stock. Upon any liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, after payment in full of the
Liquidation Value of the Series A Preferred Stock and the
liquidation value of any other series of Preferred Stock which
may from time to time come into existence, the holders of the
Common Stock shall be entitled to receive ratably all
remaining assets of the Corporation to be distributed among
them, based upon the number of shares of Common Stock held by
each such holder.
5. Redemption of Series A Preferred Stock.
(a) Redemption Upon Initial Public Offering.
(i) Promptly after the closing
of an underwritten, initial public offering of the
Corporation's Common Stock for cash pursuant to a
registration statement under the Securities Act of
1933, as amended, the Corporation shall redeem, out
of funds legally available therefor, all outstanding
shares of the Series A Preferred Stock by paying in
cash to the holders thereof an amount equal to the
Liquidation Value thereof. Such payment shall be made
to the record holders of the Series A Preferred
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Stock and shall be accompanied by written notice
specifying the number of shares that are being
redeemed from each holder.
(ii) If the funds legally
available to redeem shares of Series A Preferred
Stock under this Section 5(a) of this Article FOURTH
are insufficient to redeem all of the outstanding
shares of Series A Preferred Stock at any time, the
Corporation shall redeem the maximum number of shares
of Series A Preferred Stock that the Corporation has
funds legally available therefor on a pro rata basis
among all of the holders of Series A Preferred Stock
according to the number of shares of Series A
Preferred Stock owned by each holder, and shall
quarterly thereafter redeem the maximum number of
shares of Series A Preferred Stock that the
Corporation has funds legally available therefor on a
pro rata basis among all of the holders of Series A
Preferred Stock according to the number of shares of
Series A Preferred Stock then owned by each holder.
(iii) Promptly after each holder
of Series A Preferred Stock has received payment of
the Liquidation Value thereof, such holder shall
surrender certificates evidencing the Series A
Preferred Stock so redeemed, and shall thereupon be
entitled to receive a replacement certificate for any
shares of Series A Preferred Stock not redeemed.
(iv) After any payment under
this Section 5(a) of this Article FOURTH, the
redeemed shares of Series A Preferred Stock shall be
cancelled on the Corporation's records and shall
cease to be outstanding.
(b) Redemption at Corporation's Option.
(i) The Corporation may at any
time, at its option, redeem some or all shares of
Series A Preferred Stock, out of funds legally
available therefor, at a price per share equal to the
Liquidation Value as of the date of redemption. Such
redemption shall be made by paying such amount to the
record holders of the Series A Preferred Stock and
shall be accompanied by written notice specifying the
number of shares that are being redeemed from each
holder. All such redemptions shall be pro rata among
the holders of Series A Preferred Stock according to
the number of shares of Series A Preferred Stock
owned by each holder.
(ii) Promptly after each record
holder of Series A Preferred Stock has received
payment of the Liquidation Value thereof pursuant to
this Section 5(b) of this Article FOURTH, such holder
shall surrender certificates evidencing the Series A
Preferred Stock so redeemed, and shall thereupon be
entitled to receive a replacement certificate for any
shares of Series A Preferred Stock not redeemed.
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(iii) After any payment under
this Section 5(b) of this Article FOURTH, the
redeemed shares of Series A Preferred Stock shall be
cancelled on the Corporation's records and shall
cease to be outstanding.
(c) Mandatory Redemption.
(i) The Corporation shall, on the first
business day following May 1, 2010 (or, if the Corporation's Senior
Subordinated Secured Increasing Rate Notes due 2008 have not then been
paid in full, immediately after the date on which such Notes have been
paid in full), redeem all shares of Series A Preferred Stock then
outstanding, out of funds legally available therefor, at a price per
share equal to the Liquidation Value as of the date of redemption. Such
redemption shall be made by paying such amount to the record holders of
the Series A Preferred Stock and shall be accompanied by written notice
specifying the number of shares that are being redeemed from each
holder. In the event the funds legally available to redeem shares of
Series A Preferred Stock are insufficient to redeem all of the
outstanding shares of Series A Preferred Stock, the Corporation shall
redeem the maximum number of shares of Series A Preferred Stock that
the Corporation has funds legally available therefor on a pro rata
basis among the holders of Series A Preferred Stock and shall quarterly
thereafter redeem the maximum number of shares of Series A Preferred
Stock that the Corporation has funds legally available therefor on a
pro rata basis among the holders of Series A Preferred Stock, at the
then applicable Liquidation Value. All such redemptions shall be pro
rata among the holders of Series A Preferred Stock.
(ii) Promptly after each record holder
of Series A Preferred Stock has received payment of the Liquidation
Value thereof pursuant to this Section 5(c) of this Article FOURTH,
such holder shall surrender certificates evidencing the Series A
Preferred Stock so redeemed, and shall thereupon be entitled to receive
a replacement certificate for any shares not redeemed.
(iii) After any payment under this
Section 5(c) of this Article FOURTH, the redeemed shares shall be
canceled on the Corporation's records and shall cease to be
outstanding.
6. No Conversion Rights for Series A Preferred Stock.
The holders of the Series A Preferred Stock shall not have any rights to convert
such shares into shares of any other class or series of stock or into any other
securities of, or any other interest in, the Corporation.
7. No Sinking Fund. No sinking fund shall be established
for the retirement or redemption of the Series A Preferred Stock.
8. No Other Rights. The Series A Preferred Stock shall
not have any designations, preferences, or relative, participating, optional, or
other special rights, except as set forth in this Certificate of Incorporation
or as otherwise required by law.
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FIFTH: Following the date the Corporation first has a class of
securities registered under Section 12 of the Securities Exchange Act of 1934,
as amended, no action required or permitted to be taken at any annual or special
meeting of the stockholders of the Corporation may be taken by written consent
without a meeting, except by a written consent signed by all stockholders of the
Corporation entitled to vote thereon.
SIXTH:
1. Elections of Directors need not be by ballot unless
the By-Laws of the Corporation shall so provide.
2. The business and affairs of the Corporation shall be
managed by or under the direction of the Board.
3. Unless a greater vote requirement in any matter is
provided in this Certificate of Incorporation or the By-Laws, the affirmative
vote of a majority of the Directors present and acting at a duly constituted
meeting at which a majority of the entire Board is present and acting, is
sufficient for all action of the Board.
4. Any action required or permitted to be taken by the
Board may be taken without a meeting if all members of the Board consent in
writing to the adoption of resolutions authorizing the action.
5. The Board shall have the power to adopt, amend or
repeal the By-Laws of the Corporation.
SEVENTH: The Board shall have that number of Directors set out
in the By-Laws of the Corporation as adopted or as set from time to time by a
duly adopted amendment thereto by the Directors or stockholders of the
Corporation.
EIGHTH: The Corporation shall have perpetual existence.
NINTH:
1. The personal liability of the Directors of the
Corporation is hereby eliminated to the fullest extent permitted by paragraph
(7) of subsection (b) of Section 102 of the General Corporation Law of the State
of Delaware, as the same may be amended and supplemented.
2. The Corporation shall, to the fullest extent
permitted by 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 those indemnified may be
entitled under any By-Law, agreement, vote of stockholders or disinterested
Directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office, and shall
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continue as to a person who has ceased to be a Director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such person.
3. The right to indemnification conferred by this
Article NINTH 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 upon receipt by the Corporation of an undertaking by or on
behalf of the person receiving advancement to repay the amount advanced if it
shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation under this Article NINTH.
4. Neither any amendment nor repeal of this Article
NINTH, nor the adoption of any provision of this Certificate of Incorporation
inconsistent with this Article NINTH, shall eliminate or reduce the effect of
this Article NINTH in respect of any matter occurring, or any action or
proceeding accruing or arising or that, but for this Article NINTH, would accrue
or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
TENTH:
1. To the fullest extent permitted by the General
Corporation Law of the State of Delaware and subject to Section 2 of this
Article TENTH, this Certificate of Incorporation may be amended by the Board,
with respect to corrections not affecting the rights, preferences and privileges
of the Corporation's stockholders.
2. The Corporation reserves the right to amend and
repeal any provision contained in this Certificate of Incorporation in the
manner prescribed by the laws of the State of Delaware. All rights herein
conferred are granted subject to this reservation.
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IN WITNESS WHEREOF, Fountain View, Inc., has caused this
Restated Certificate of Incorporation to be signed by Roland Rapp its Secretary,
this 14th day of August, 2003.
FOUNTAIN VIEW, INC.
By: \s\ Roland Rapp
-------------------------------
Roland Rapp
Secretary
[FVI Amended and Restated Certificate of Incorporation]
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