Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
THE MULTICARE COMPANIES, INC.
(restated to reflect all amendments through June 26, 1996)
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Adopted in Accordance with the
Provisions of Section 245 and 242 of the
Delaware General Corporation Law
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THE MULTICARE COMPANIES, INC., a corporation organized under the
General Corporation Law of the State of Delaware (the "GCL"), certifies as
follows:
ARTICLE I
NAME
The name of the corporation (hereinafter referred to as the
"Corporation") is:
THE MULTICARE COMPANIES, INC.
ARTICLE II
ADDRESS; REGISTERED AGENT
The address of the Corporation's registered office in the State
of Delaware is 32 Loockerman Square, Suite L-100, City of Dover, County of
Kent. The name of its registered agent at such address is The Prentice-
Hall Corporation System, Inc.
ARTICLE III
PURPOSES
The nature of the business and purposes to be conducted or
promoted by the Corporation are to engage in, carry on and conduct any
lawful act or activity for which corporations may be organized under the
GCL.
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ARTICLE IV
CAPITALIZATION
The total number of shares which the Corporation shall have
authority to issue is Seventy-seven Million (77,000,000) shares, consisting
of Seven Million (7,000,000) shares of Preferred Stock, of the par value of
One Cent ($.01) per share (hereinafter called "Preferred Stock"), and
Seventy Million (70,000,000) shares of Common Stock, of the par value of
One Cent ($.01) per share (hereinafter called "Common Stock").
ARTICLE V
RIGHTS OF STOCKHOLDERS
The designation, relative rights, preferences and limitations of
the shares of each class are as follows:
1. The shares of Preferred Stock may be issued from time to
time in one or more series of any number of shares, provided that the
aggregate number of shares issued and not cancelled of any and all such
series shall not exceed the total number of shares of Preferred Stock
hereinabove authorized, and with distinctive serial designations, all as
shall hereafter be stated and expressed in the resolution or resolutions
providing for the issue of such shares of Preferred Stock from time to time
adopted by the Board of Directors pursuant to authority so to do which is
hereby vested in the Board of Directors. Each series of shares of
Preferred Stock (a) may have such voting powers, full or limited, or may be
without voting powers; (b) may be subject to redemption at such time or
times and at such prices; (c) may be entitled to receive dividends (which
may be cumulative or non-cumulative) at such rate or 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 series
of stock; (d) may have such rights upon the dissolution of, or upon any
distribution of the assets of, the Corporation; (e) may be made convertible
into or exchangeable for, shares of any other class or classes or of any
other series of the same or any other class or classes of shares of the
Corporation at such price or prices or at such rates of exchange and with
such adjustments; (f) may be entitled to the benefit of a sinking fund to
be applied to the purchase or redemption of shares of such series in such
amount or amounts; (g) may be entitled to the benefit of conditions and
restrictions upon the creation of indebtedness of the Corporation or any
subsidiary, upon the issue of any additional shares (including additional
shares of such series or of any other series) and
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upon the payment of dividends or the making of other distributions on, and
the purchase, redemption or other acquisition by the Corporation or any
subsidiary of, any outstanding shares of the Corporation and (h) may have
such other relative, participating, optional or other special rights,
qualifications, limitations or restrictions thereof; all as shall be stated
in said resolution or resolutions providing for the issue of such shares of
Preferred Stock. Shares of Preferred Stock of any series that have been
redeemed (whether through the operation of a sinking fund or otherwise) or
that if convertible or exchangeable, have been converted into or exchanged
for shares of any other class or classes shall have the status of
authorized and unissued shares of Preferred Stock of the same series and
may be reissued as a part of the series of which they were originally a
part or may be reclassified and reissued as part of a new series of shares
of Preferred Stock to be created by resolution or resolutions of the Board
of Directors or as part of any other series of shares of Preferred Stock,
all subject to the conditions or restrictions on issuance set forth in the
resolution or resolutions adopted by the Board of Directors providing for
the issue of any series of shares of Preferred Stock.
2. Subject to the provisions of any applicable law or of the
By-laws of the Corporation, as from time to time amended, with respect to
the closing of the transfer books or the fixing of a record date for the
determination of stockholders entitled to vote and except as otherwise
provided by law or by the resolution or resolutions providing for the issue
of any series of shares of Preferred Stock, the holders of outstanding
shares of Common Stock shall exclusively possess voting power for the
election of directors and for all other purposes, each holder of record of
shares of Common Stock being entitled to one vote for each share of Common
Stock standing in his or her name on the books of the Corporation. Except
as otherwise provided by the resolution or resolutions providing for the
issue of any series of shares of preferred stock, the holders of shares of
Common Stock shall be entitled, to the exclusion of the holders of shares
of Preferred Stock of any and all series, to receive such dividends as from
time to time may be declared by the Board of Directors. In the event of
any liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, after payment shall have been made to the holders
of shares of Preferred Stock of the full amount to which they shall be
entitled pursuant to the resolution or resolutions providing for the issue
of any series of shares of Preferred Stock, the holders of shares of Common
Stock shall be entitled, to the exclusion of the holders of shares of
Preferred Stock of any and all series, to share, ratably according to the
number of shares of
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Common Stock held by them, in all remaining assets of the Corporation
available for distribution to its stockholders.
3. Subject to the provisions of this Restated Certificate of
Incorporation and except as otherwise provided by law, the stock of the
Corporation, regardless of class, may be issued for such consideration and
for such corporate purposes as the Board of Directors may from time to time
determine.
ARTICLE VI
ACTION BY STOCKHOLDERS;
STOCKHOLDERS' MEETINGS
1. Any action required or permitted to be taken by the holders
of the issued and outstanding stock of the Corporation may be effected
solely at an annual or special meeting of stockholders duly called and held
in accordance with law and this Restated Certificate of Incorporation, and
the power of stockholders, or any of them, to consent in writing, without a
meeting, to the taking of any such action is hereby specifically denied.
2. In addition to any authorization provided by law or this
Restated Certificate of Incorporation, the Board of Directors is authorized
to adopt provisions in the By-laws of the Corporation that provide the
manner by which a stockholder of the Corporation may nominate directors or
may bring any other business before an annual or special meeting of
stockholders, including without limitation provisions requiring advance
notice by such stockholder and prescribing the content thereof.
3. The annual meeting of stockholders of the Corporation for
the election of directors and the transaction of such other business as may
be brought before such meeting in accordance with this Restated Certificate
of Incorporation shall be held at such hour and on such business day in
each year as may be determined by resolution adopted by the affirmative
vote of a majority of the entire Board of Directors. If the election of
directors shall not be held on the date designated therefor or at an
adjournment of a meeting convened on such date, the Board of Directors by
resolution or resolutions adopted by the affirmative vote of a majority of
the entire Board of Directors shall cause to be held a special meeting of
stockholders for such purpose as soon thereafter as is reasonably
practicable. Special meetings of stockholders other than as above provided
may be called at any other time only at the direction of the Board of
Directors by resolution adopted by the affirmative vote of a majority of
the entire Board of
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Directors, or by the Chairman of the Board of Directors or by the President
of the Corporation. Annual and special meetings of stockholders shall not
be called or held otherwise than as herein provided. Except as otherwise
provided by law or by this Restated Certificate of Incorporation, at any
meeting of stockholders of the Corporation the presence in person or by
proxy of the holders of a majority in voting power of the outstanding stock
of the Corporation entitled to vote shall constitute a quorum for the
transaction of business brought before the meeting in accordance with this
Restated Certificate of Incorporation and, a quorum being present, except
as otherwise required by law, the affirmative vote of the holders of a
majority in voting power present in person or represented by proxy and
entitled to vote shall be required to effect action by stockholders.
Election of directors need not be by written ballot except to the extent
provided in the By-laws of the Corporation. At every meeting of
stockholders, the Chairman of the Board of Directors or, in the absence of
such officer, the President, or in the absence of the Chairman of the Board
of Directors and the President, such officer or other person as shall be
designated in accordance with the By-laws of the Corporation, shall act as
Chairman of the meeting. The Chairman of the meeting shall have sole
authority to prescribe the agenda and rules of order for the conduct of
each meeting of stockholders and to determine all questions arising thereat
relating to the order of business and the conduct of the meeting, except as
otherwise required by law.
ARTICLE VII
BOARD OF DIRECTORS
1. Effective at the first annual meeting of stockholders at
which directors are elected, the Board of Directors shall be divided into
three classes -- Class I, Class II and Class III -- which shall be as
nearly equal in number as possible. Each director shall serve for a term
ending on the date of the third annual meeting following the annual meeting
at which such director was elected; provided, however, that each director
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first elected to Class I shall hold office until the annual meeting of
stockholders in 1995; each director first elected to Class II shall hold
office until the annual meeting of stockholders in 1996; and each director
first elected to Class III shall hold office until the annual meeting of
stockholders in 1997.
2. The number of directors that shall constitute the whole
Board of Directors of the Corporation shall be the
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number from time to time fixed in the By-laws of the Corporation, and such
number of directors and their respective classifications so fixed in such
By-laws may be changed only by the affirmative vote of a majority of the
directors in office at the time of vote, provided that any such action does
not operate to remove a director other than in the manner prescribed in
this Restated Certificate of Incorporation or the By-laws of the
Corporation. When the number of directors is changed, any increase or
decrease in the number of directorships shall be apportioned among the
classes so as to make all classes as nearly equal in number as possible.
The directors of the Corporation need not be stockholders.
3. Each director shall serve until his successor is elected and
qualified or until his death, retirement, resignation or removal. No
director may be removed during his term except for cause. Should a vacancy
occur or be created, whether arising through death, retirement, resignation
or removal of a director, such vacancy shall be filled by a majority vote
of the remaining directors. A director so elected to fill a vacancy shall
serve for the remainder of the then present term of office of the class to
which he was elected.
4. Except as otherwise provided by law or by this Restated
Certificate of Incorporation, a majority of the directors in office at the
time of a duly assembled meeting shall be necessary to constitute a quorum
for the transaction of business, and the act of a majority of the directors
present at such meeting shall be the act of the Board of Directors.
5. In furtherance of and not in limitation of the powers
conferred by statute, the Board of Directors of the Corporation, from time
to time, may make, amend or repeal By-laws of the Corporation; provided,
that By-laws made or amended by the Board of Directors may be amended or
repealed, and that any By-laws may be made, by the stockholders of the
Corporation.
6. The By-laws may confer upon the Board of Directors powers in
addition to the foregoing and in addition to the powers and authorities
expressly conferred upon them by law, but only to the extent permitted by
law and by the provisions of this Restated Certificate of Incorporation.
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ARTICLE VIII
LIMITATION OF LIABILITY
1. No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (a) for any breach of
the director's duty of loyalty to the Corporation or its stockholders,
(b) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) under Section 174 of the GCL
or (d) for any transaction from which the director derived any improper
personal benefits.
2. Any repeal or modification of the foregoing paragraph 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.
ARTICLE IX
INDEMNIFICATION
1. To the extent not prohibited by law, the Corporation shall
indemnify any person who is or was made, or threatened to be made, a party
to any threatened, pending or completed action, suit or proceeding (a
"Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the
Corporation to procure a judgment in its favor, by reason of the fact that
such person, or a person of whom such person is the legal representative,
is or was a director or officer of the Corporation, or is or was serving in
any capacity at the request of the Corporation for any other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise (an "Other Entity"), against judgments, fines, penalties, excise
taxes, amounts paid in settlement and costs, charges and expenses
(including attorneys' fees and disbursements). Persons who are not
directors or officers of the Corporation may be similarly indemnified in
respect of service to the Corporation or to an Other Entity at the request
of the Corporation to the extent the Board of Directors at any time
specifies that such persons are entitled to the benefits of this
Article IX.
2. The Corporation shall, from time to time, reimburse or
advance to any director or officer or other person entitled to
indemnification hereunder the funds necessary for payment of expenses,
including attorneys' fees
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and disbursements, incurred in connection with any Proceeding, in advance
of the final disposition of such Proceeding; provided, however, that, if
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required by the GCL, such expenses incurred by or on behalf of any director
or officer or other person may be paid in advance of the final disposition
of a Proceeding only upon receipt by the Corporation of an undertaking, by
or on behalf of such director or officer (or other person indemnified
hereunder), to repay any such amount so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right
of appeal that such director, officer or other person is not entitled to be
indemnified for such expenses.
3. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this
Article IX shall not be deemed exclusive of any other rights to which a
person seeking indemnification or reimbursement or advancement of expenses
may have or hereafter be entitled under any statute, this Restated
Certificate of Incorporation, the By-laws of the Corporation, any agree-
ment, any 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.
4. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this
Article IX shall continue as to a person who has ceased to be a director or
officer (or other person indemnified hereunder) and shall inure to the
benefit of the executors, administrators, legatees and distributees of such
person.
5. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who 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, employee or agent of an Other
Entity, against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of this Article IX, the
By-laws or under Section 145 of the GCL or any other provision of law.
6. The provisions of this Article IX shall be a contract
between the Corporation, on the one hand, and each director and officer who
serves in such capacity at any time while this Article IX is in effect and
any other person indemnified hereunder, on the other hand, pursuant to
which the Corporation and each such director, officer, or other
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person intend to be legally bound. No repeal or modification of this
Article IX shall affect any rights or obligations with respect to any state
of facts then or theretofore existing or thereafter arising or any
proceeding theretofore or thereafter brought or threatened based in whole
or in part upon any such state of facts.
7. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this
Article IX shall be enforceable by any person entitled to such
indemnification or reimbursement or advancement of expenses in any court of
competent jurisdiction. The burden of proving that such indemnification or
reimbursement or advancement of expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation (including its Board
of Directors, its independent legal counsel and its stockholders) to have
made a determination prior to the commencement of such action that such
indemnification or reimbursement or advancement of expenses is proper in
the circumstances nor an actual determination by the Corporation (including
its Board of Directors, its independent legal counsel and its stockholders)
that such person is not entitled to such indemnification or reimbursement
or advancement of expenses shall constitute a defense to the action or
create a presumption that such person is not so entitled. Such a person
shall also be indemnified for any expenses incurred in connection with
successfully establishing his or her right to such indemnification or
reimbursement or advancement of expenses, in whole or in part, in any such
proceeding.
8. Any director or officer of the Corporation serving in any
capacity for (a) another corporation of which a majority of the shares
entitled to vote in the election of its directors is held, directly or
indirectly, by the Corporation or (b) any employee benefit plan of the
Corporation or any corporation referred to in clause (a) shall be deemed to
be doing so at the request of the Corporation.
9. Any person entitled to be indemnified or to reimbursement or
advancement of expenses as a matter of right pursuant to this Article IX
may elect to have the right to indemnification or reimbursement or
advancement of expenses interpreted on the basis of the applicable law in
effect at the time of the occurrence of the event or events giving rise to
the applicable Proceeding, to the extent permitted by law, or on the basis
of the applicable law in effect at the time such indemnification or
reimbursement or advancement of expenses is sought. Such election shall be
made, by a notice in writing to the Corporation, at the time
indemnification or reimbursement or advancement of expenses is sought;
provided, however, that if no such notice is given, the right to
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indemnification or reimbursement or
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advancement of expenses shall be determined by the law in effect at the
time indemnification or reimbursement or advancement of expenses is sought.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation having
been duly adopted in accordance with Sections 245 and 242 of the
GCL, has been signed as of July 14, 1993.
/s/ Daniel E. Straus
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Daniel E. Straus
President
Attest:
/s/ Moshael J. Straus
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Moshael J. Straus
Secretary