EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
Fountain View Management, Inc.
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THE UNDERSIGNED, for the purpose of forming a corporation pursuant to the
provisions of the General Corporation Law of the State of Delaware, does hereby
certify as follows:
FIRST: The name of the Corporation is Fountain View Management, Inc.
(the "Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, City of Wilmington,
County of New Castle, 19801 and the name of the Corporation's registered agent
at such address is The Corporation Trust Company.
THIRD: The purpose for which the Corporation is organized 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.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 3,000 shares of Class A Common Stock, $.01 par value.
FIFTH: The name and the mailing address of the incorporator is as follows:
NAME MAILING ADDRESS
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Kathleen M. Sablone Choate, Hall & Stewart
Exchange Place
53 State Street
Boston, MA 02109
SIXTH: The Directors shall have power to adopt, amend, or repeal the By-
Laws of the Corporation.
SEVENTH: Election of Directors need not be by written ballot unless the
By-Laws of the Corporation so provide.
EIGHTH: The Corporation shall indemnify and hold harmless any director,
officer employee or agent of the Corporation from and against any and all
expenses and liabilities that may be imposed upon or incurred in connection
with, or as a result of, any proceeding in which he or she may become involved,
as a party or otherwise, by reason of the fact that
he or she is or was such a director, officer, employee or agent, whether or not
he or she continues to be such at the time such expenses and liabilities shall
have been imposed or incurred, to the fullest extent permitted by the laws of
the State of Delaware as they may be amended from time to time.
NINTH: No director of the Corporation shall be liable to the Corporation
or 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) under Section 174 of Title 8 of the General Corporation Law of the
State of Delaware or (iv) for any transaction from which the director derived an
improper personal benefit.
TENTH: 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.
The undersigned incorporator hereinbefore named, for the purpose of forming
a corporation pursuant to the General Corporation Law of the State of Delaware,
does make this certificate, hereby declaring and certifying that this is her act
and deed and the facts stated herein are true and accordingly has hereunto set
her hand this 14th day of July, 1997.
/s/ Kathleen M. Sablone
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Kathleen M. Sablone, Incorporator
PAGE 1
State of Delaware
Office of the Secretary of State
________________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "FOUNTAIN VIEW MANAGEMENT, INC.", CHANGING ITS NAME FROM "FOUNTAIN VIEW
MANAGEMENT, INC." TO "FOUNTAIN VIEW, INC.", FILED IN THIS OFFICE ON THE FIRST
DAY OF AUGUST, A.D. 1997, AT 2:30 O'CLOCK P.M.
[SEAL] /s/ Edward J. Freel
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Edward J. Freel, Secretary of State
2772638 8100 AUTHENTICATION:
9027443
DATE:
981143230 04-15-98
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
FOUNTAIN VIEW MANAGEMENT, INC.
IT IS HEREBY CERTIFIED THAT:
1. The name of the Corporation (hereinafter, the "Corporation") is
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Fountain View Management, Inc.
2. The Certificate of Incorporation of the Corporation is hereby amended
by deleting ARTICLE 1 thereof and by substituting in lieu thereof the following
new ARTICLE 1:
ARTICLE 1. The name of the Corporation is Fountain View, Inc. (the
"Corporation").
3. The Certificate of Incorporation of the Corporation is hereby amended
by deleting ARTICLE 4 thereof and by substituting in lieu thereof the following
new ARTICLE 4:
ARTICLE 4. 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:
Section 1. Capital Stock.
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1.1 General. The Corporation shall have two classes of capital stock (the
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"Capital Stock"): Common Stock, $.01 par value per share (the "Common Stock"),
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and Preferred Stock, $.01 par value per share (the "Preferred Stock").
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1.2 Number of Shares. The total authorized number of shares of each class
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of Capital Stock is (a) 200,000 shares of Common Stock and (b) 7,000 shares of
Preferred Stock.
1.3 Series of Preferred Stock. The shares of Preferred Stock shall be
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designated "Series A Preferred Stock" (the "Series A Preferred Stock").
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1.4 Series of Common Stock. 53,850 shares of the Common Stock shall be
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designated "Series A-1 Common Stock" (the "Series A-1 Common Stock"). 99,950
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shares of the Common Stock shall be designated "Series A-2 Common Stock" (the
"Series A-2 Common Stock"). 46,200 shares of the Common Stock shall be
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designated "Series A-3 Common Stock" (the "Series A-3 Common Stock").
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Section 2. Dividends and Other Distributions and Benefits.
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2.1 Dividends on the Series A Preferred Stock.
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(a) 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 10% 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 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.
(b) If declared by the Board of Directors, dividends on each share of
Series A Preferred Stock shall be paid on each July 1 while such share is
outstanding (the "Dividend Reference Date").
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(c) Any dividends that accrue on any share of Series A Preferred Stock
during the one-year period (or lesser period in the case of the first Dividend
Reference Date) ending upon such Dividend Reference Date, and are not paid on
such Dividend Reference Date, 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.
(d) The "Base Amount" of any share of Series A Preferred Stock as of a
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particular date shall be an amount equal to the sum of $1,000 plus any unpaid
dividends on such share added to the Base Amount of such share as provided above
and not thereafter paid.
2.2 Other Dividends and Distributions on Capital Stock. Any dividend
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payable in shares of the Corporation's Common Stock, and any split or other
subdivision of such Common Stock, shall not be deemed to be a distribution of
property pursuant to this paragraph 2.2. Dividends on the Common Stock shall be
made among the holders thereof pro rata to the number of shares of Common Stock
held by each holder (but, in the case of a stock dividend, shall be made only in
shares of the respective series of Common Stock held by each holder).
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Section 3. Voting Rights.
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At every meeting of the stockholders (or for actions by written consent of
stockholders), except as otherwise required by law or specified in this
Certificate of Incorporation, on all matters to be voted on by the stockholders
of the Corporation, the following provisions shall apply:
3.1 Voting by Series A Preferred Stock. The Preferred Stock shall be non-
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voting, and the holders thereof, as such, shall not be entitled to vote on
matters to be voted upon by the stockholders of the Corporation, provided that
as long as any Series A Preferred Stock is outstanding, the Corporation shall
not, without the affirmative vote or written consent of the then holders of a
majority of the outstanding shares of Series A Preferred Stock, alter or change
the powers, preferences or rights of the Series A Preferred Stock or the
qualifications, limitations or restrictions thereof.
3.2 Class Voting by Common Stock. Subject to the following paragraphs of
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this Section 3, the holders of all series of Common Stock shall vote together as
a single class on all matters to be voted on by the holders of the Common Stock.
3.3 Voting by Series A-1 Common Stock. In any matter to be voted on by
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the holders of the Common Stock, each holder of shares of Series A-1 Common
Stock shall have three votes for each such share held by such holder.
3.4 Voting by Series A-2 Common Stock. In any matter to be voted on by
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the holders of the Common Stock, each holder of shares of Series A-2 Common
Stock shall have one vote for each such share held by such holder.
3.5 Voting by Series A-3 Common Stock. The Series A-3 Common Stock shall
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be non-voting, and the holders thereof, as such, shall not be entitled to vote
on matters to be voted upon by the stockholders of the Corporation.
Section 4. Liquidation.
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4.1 Preference of Series A Preferred Stock. Upon any liquidation,
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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 through the close of business on such date and
not previously added to such Base Amount (the "Liquidation Value"). If upon
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such liquidation, dissolution or winding up, the assets to be
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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 shall be distributed ratably
among the holders of the shares of Series A Preferred Stock.
4.2 Preference of Series A-1 Common Stock and Series A-2 Common Stock.
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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, the holders of Series A-1 Common Stock and Series A-2
Common Stock shall be entitled, before any distribution or payment is made upon
any other shares of Common Stock, to be paid in cash, in respect of each share
of Series A-1 Common Stock and Series A-2 Common Stock held by such holder, an
amount equal to $130 (the "Common Stock Preference"). If upon such liquidation,
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dissolution or winding up, the assets to be distributed among the holders of the
shares of Series A-1 Common Stock and Series A-2 Common Stock shall be
insufficient to permit payment to the holders thereof of such amounts, then all
of the assets of the Corporation then remaining shall be distributed ratably
among the holders of the shares of Series A-1 Common Stock and Series A-2 Common
Stock.
4.3 Preference of Series A-3 Common Stock. Upon any liquidation,
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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 Common Stock Preference of the Series A-1 Common Stock and Series A-2
Common Stock, the holders of Series A-3 Common Stock shall be entitled, before
any distribution or payment is made upon any other shares of Common Stock, to be
paid in cash, in respect of each share of Series A-3 Common Stock held by such
holder, an amount equal to the Common Stock Preference. If upon such
liquidation, dissolution or winding up, the assets to be distributed among the
holders of the shares of Series A-3 Common Stock shall be insufficient to permit
payment to the holders thereof of such amounts, then all of the assets of the
Corporation then remaining shall be distributed ratably among the holders of the
shares of Series A-3 Common Stock.
4.4 Distribution of Remaining Assets. Upon any liquidation, dissolution
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or winding up of the Corporation, whether voluntary or involuntary, after
provision is made for holders of Series A Preferred Stock and Common Stock as
provided in the preceding paragraphs, the holders of Common Stock shall be
entitled to receive ratably all remaining assets of the Corporation to be
distributed, based on the number of shares of Common Stock held by each such
holder.
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4.5 Treatment of Certain Transactions. The occurrence of a "Trigger
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Event", as such term is defined in the Stockholders Agreement dated as of August
1, 1997 among the Company, Robert Snukal, Sheila Snukal and Heritage Fund II
Investment Corporation, as amended from time to time, shall be deemed to be a
liquidation, dissolution or winding up of the affairs of the Corporation within
the meaning of Section 4.1, and shall be subject to all of the provisions
thereof, and no such transaction shall be consummated unless the Corporation has
received (or upon the consummation of such transaction will receive) payment in
cash of the Liquidation Value as provided in Section 4.1.
4. That such amendment has been duly adopted in accordance with the
provisions of Sections 228 and 242 of the General Corporation Law of the State
of Delaware.
The foregoing Certificate of Amendment has been signed and attested as of
August __, 1997.
/s/ Robert Snukal
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Robert Snukal, President
ATTEST:
/s/ Sheila Snukal
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Sheila Snukal, Secretary
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