EXHIBIT 3.3
CERTIFICATE OF INCORPORATION
OF
VENTAS CAPITAL CORPORATION
* * * * * * * *
1. The name of the corporation (the "Corporation") is:
Ventas Capital Corporation
2. The address of its registered office in the State of Delaware is 2711
Centerville Road, Suite 400, Wilmington, County of New Castle, Delaware, 19808.
The name of the registered agent of the Corporation at such address is
Corporation Service Company.
3. The nature of the business or purposes to be conducted or promoted by
the Corporation 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.
4. The total number of shares of stock which the Corporation shall have
authority to issue is 100 shares of Common Stock, each of which shall have a par
value of one cent ($.01) per share.
5. The name and mailing address of the incorporator (the "Incorporator") is
as follows:
Stuart A. Rubin
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019
6. The powers of the Incorporator shall terminate upon the filing of this
Certificate of Incorporation and the names and mailing addresses of the persons
who shall serve as directors until the first annual meeting of stockholders or
until their successors are elected and qualify are as follows:
Debra Cafaro T. Richard Riney John C. Thompson
c/o Ventas, Inc. c/o Ventas, Inc. c/o Ventas, Inc.
4360 Brownsboro Road 4360 Brownsboro Road 4360 Brownsboro Road
Suite 115 Suite 115 Suite 115
Louisville, Kentucky 40207 Louisville, Kentucky 40207 Louisville, Kentucky 40207
7. In furtherance and not in limitation of the powers conferred by statute,
the by-laws of the Corporation may be made, altered, amended or repealed by the
stockholders or by the board of directors.
8. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all
stockholders or class of stockholders of this Corporation, as the case may be,
and also on this Corporation.
9. Elections of directors need not be by written ballot.
10. (a) The Corporation shall indemnify to the fullest extent permitted
under and in accordance with the laws of the State of Delaware any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that the person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees)
actually and reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) Expenses incurred in defending a civil or criminal action, suit or
proceeding shall (in the case of any action, suit or proceeding against a
director of the Corporation) or may (in the case of any action, suit or
proceeding against an officer, trustee, employee or agent) be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board upon receipt of an undertaking by or on
behalf of the indemnified person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article.
(d) The indemnification and other rights set forth in this paragraph 10
shall not be exclusive of any provisions with respect thereto in the by-laws of
the Corporation or any other contract or agreement between the Corporation and
any officer, director, employee or agent of the Corporation.
(e) Neither the amendment nor repeal of this paragraph 10, nor the adoption
of any provision of this Certificate of Incorporation inconsistent with
paragraph 10, shall eliminate or reduce the effect of this paragraph 10 in
respect of any matter occurring before such amendment, repeal or adoption of an
inconsistent provision or in respect of any cause of action, suit or claim
relating to any such matter which would have given rise to a right of
indemnification or right to receive expenses pursuant to this paragraph 10 if
such provision had not been so amended or repealed or if a provision
inconsistent therewith had not been so adopted.
(f) No director shall be personally liable to the Corporation or any
stockholder for monetary damages for breach of fiduciary duty as a director;
provided, however, that the foregoing shall not eliminate or limit the liability
of a director:
(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 the General Corporation Law of the State of
Delaware; or
(iv) for any transaction from which the director derived an improper
personal benefit.
If the General Corporation Law of the State of Delaware is amended after 26
March, 2002 to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of the State of Delaware, as so amended.
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THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose
of forming a Corporation pursuant to the General Corporation Law of the State of
Delaware makes this Certificate, hereby declaring and certifying that this is
his act and deed and the facts herein stated are true and, accordingly, has
hereunto set his hand this 26 day of March, 2002.
/s/ Stuart A. Rubin
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Stuart A. Rubin
Incorporator