8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): September 21, 2021

New Senior Investment Group Inc.

(Exact Name of Registrant as Specified in its Charter)

Delaware	001-36499	80-0912734
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification Number)

55 West 46th Street, Suite 2204

New York, New York 10036

(Address of principal executive office)

646-822-3700

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class:	Trading Symbol:	Name of each exchange on which registered:
Common stock, $0.01 par value per share	SNR	New York Stock Exchange (NYSE)

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 under the Securities Act of 1933 (17 CFR 230.405) or Rule 12b-2 under the Securities Exchange Act of 1934 (17 CFR 240.12b-2).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

Introductory Note.

On September 21, 2021, New Senior Investment Group Inc., a Delaware corporation (“New Senior”), completed the previously announced merger of Cadence Merger Sub LLC, a limited liability company (“Merger Sub”), with and into New Senior (the “Merger”), with New Senior surviving the merger as a subsidiary of Ventas, Inc., a Delaware corporation (“Ventas”). The Merger was effected pursuant to an Agreement and Plan of Merger, dated as of June 28, 2021 (the “Merger Agreement”), by and among New Senior, Merger Sub and Ventas, as previously disclosed by New Senior on June 29, 2021 in a Current Report on Form 8-K filed with the Securities and Exchange Commission (“SEC”).

Item 1.02 Termination of a Material Definitive Agreement.

In connection with the consummation of the Merger, on September 21, 2021, New Senior prepaid in full, resulting in the termination of, mortgage financing comprised of 14 loans in the original aggregate principal amount of $270,015,000 issued February 10, 2020 (collectively, referred to as, the “2020 Financing”), by and between subsidiaries of New Senior, as borrowers, and KeyBank National Association, as lender. New Senior incurred prepayment fees of approximately $2.7 million related to the termination of the 2020 Financing.

In connection with the consummation of the Merger, on September 21, 2021, New Senior prepaid in full, resulting in the termination of, that certain Master Multifamily Loan and Security Agreement – Senior Housing, dated as of October 10, 2018 in respect of the loans in the original aggregate principal amount of $720,000,000 (the “2018 Financing”), by and among subsidiaries of New Senior, as borrowers, and KeyBank National Association, as lender. New Senior incurred prepayment fees of approximately $6.5 million related to the termination of the 2018 Financing.

In connection with the consummation of the Merger, on September 21, 2021, New Senior terminated the Credit Agreement, dated as of December 13, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among New Senior, KeyBank National Association, as agent, the lenders from time to time party thereto, and KeyBanc Capital Markets Inc., as lead arranger. In connection with the termination of the Credit Agreement, all outstanding borrowings and all unpaid fees thereunder were paid in full and all commitments thereunder were terminated.

Item 2.01 Completion of Acquisition or Disposition of Assets.

On September 21, 2021, pursuant to and in accordance with the Merger Agreement, Merger Sub merged with and into New Senior, with New Senior surviving the merger as a subsidiary of Ventas. At the effective time of the Merger (the “Effective Time”), subject to the terms and conditions set forth in the Merger Agreement, each share of common stock, par value $0.01 per share of New Senior (the “New Senior Common Stock”) issued and outstanding immediately prior to the Effective Time (other than shares of New Senior Common Stock owned directly by Ventas, Merger Sub or New Senior) was converted into the right to receive 0.1561 (the “Exchange Ratio”) of a newly issued share of common stock, par value $0.25 per share, of Ventas (such common stock, the “Ventas Common Stock” and, such consideration, together with cash in lieu of fractional shares, the “Merger Consideration”).

In addition, at the Effective Time, (i) each option to purchase shares of New Senior Common Stock vested and was canceled and converted into the right to receive an amount in cash equal to the product of (1) the excess, if any, of the value of the Exchange Ratio multiplied by the closing price on the New York Stock Exchange (“NYSE”) for a share of Ventas Common Stock on September 20, 2021, the last trading day before completion of the Merger, over the per share exercise price of such option times (2) the number of shares covered by such option, less applicable tax withholdings, and (ii) each restricted stock award and restricted stock unit award vested and was canceled and became entitled to receive the Merger Consideration in respect of each share of New Senior Common Stock covered by such award, less applicable tax withholdings, with the number of shares of New Senior Common Stock covered by any performance-based restricted stock unit award determined based on maximum performance.

Based on the closing price of $56.50 per share of Ventas Common Stock on the NYSE on September 20, 2021, the aggregate implied value of the Merger Consideration paid to former holders of New Senior Common Stock in connection with the Merger was approximately $740 million.

The foregoing description of the Merger Agreement contained in this Item 2.01 does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement. A copy of the Merger Agreement was filed as Exhibit 2.1 to the Current Report on Form 8-K filed by New Senior with the SEC on June 29, 2021, and is incorporated herein by reference.

Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

In connection with the consummation of the Merger, New Senior requested that NYSE suspend trading of New Senior Common Stock prior to market open on the September 21, 2021 and file with the SEC a Notification of Removal from Listing and/or Registration on Form 25 to delist and deregister the New Senior Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In addition, New Senior intends to file with the SEC a certification on Form 15 requesting that its reporting obligations under Sections 13 and 15(d) of the Exchange Act be suspended.

The information set forth in Item 2.01 of this report is incorporated by reference in this Item 3.01.

Item 3.03 Material Modification to Rights of Security Holders.

The information set forth in Item 2.01, Item 3.01, Item 5.01 and Item 5.03 of this report is incorporated by reference in this Item 3.03.

Item 5.01 Changes in Control of Registrant.

As a result of the consummation of the Merger, a change of control of the registrant occurred and New Senior became a subsidiary of Ventas.

The information set forth in Item 2.01 of this report is incorporated in this Item 5.01 by reference.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Letter Agreements

On September 20, 2021, New Senior entered into a letter agreement (a “Letter Agreement”) with each of Susan Givens, President and Chief Executive Officer, Bhairav Patel, Executive Vice President of Finance and Accounting, and Lori Marino, Executive Vice President, General Counsel and Corporate Secretary (each, a “Covered Executive”), pursuant to which the employment of the Covered Executive was terminated immediately after the closing of the Merger.

Each Letter Agreement amends the “Change in Control Benefits” set forth in each Covered Executive’s existing employment letter agreement such that, in connection with a qualifying termination, such Covered Executive will be entitled to the “Maximum Bonus” rather than the “Prorated Bonus” (each, as defined in such Covered Executive’s existing employment letter agreement), and provides that upon the closing of the Merger, such Covered Executive will have the right to receive such bonus amount and the other Change in Control Benefits, contingent on such Covered Executive’s execution and non-revocation of a release of claims in favor of New Senior and its affiliates.

Each Letter Agreement also provides that, as consideration for each Covered Executive agreeing to extend and expand the non-competition restrictions to which they are currently subject, in the event that such Covered Executive receives any payments or benefits that would be subject to the excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (“Section 4999”), such Covered Executive will be entitled to receive from New Senior a payment such that such Covered Executive will retain, on an after-tax basis, 100% of the amount

that such Covered Executive would have received in connection with the Merger if Section 4999 did not apply. As of the date of this report, New Senior expects that none of the Covered Executives will be subject to the excise tax under Section 4999.

Director and Officer Resignations

Pursuant to the Merger Agreement, as of the Effective Time, each of the directors of New Senior (Frances Aldrich Sevilla-Sacasa, Norman K. Jenkins, Michael D. Malone, David Milner, Robert F. Savage, Cassia van der Hoof Holstein and Ms. Givens) resigned from the board of directors of New Senior. At the Effective Time, Christian N. Cummings, Dana J. Baker, James E. Mendelson, Michael A. Smith, and Brian K. Wood, each an officer of Merger Sub immediately prior to the Effective Time, became directors of New Senior.

Pursuant to the Merger Agreement, as of the Effective Time, each of the officers of New Senior (Ms. Givens, Mr. Patel and Ms. Marino) resigned as officers of New Senior. At the Effective Time, Christian N. Cummings, Dana J. Baker, James E. Mendelson, Michael A. Smith, and Brian K. Wood, each an officer of Merger Sub immediately prior to the Effective Time, became officers of New Senior.

The information set forth in Item 2.01 of this report is incorporated by reference in this Item 5.02.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On September 21, 2021, following consummation of the Merger, the certificate of incorporation and bylaws of New Senior were each amended and restated in their entirety. A copy of the Third Amended and Restated Certificate of Incorporation of New Senior is filed herewith as Exhibit 3.1 and is incorporated herein by reference. A copy of the Second Amended and Restated Bylaws of New Senior is filed herewith as Exhibit 3.2 and is incorporated herein by reference.

The information set forth in Item 2.01 of this report is incorporated by reference in this Item 5.03.

Item 8.01 Other Events.

On September 21, 2021, New Senior and Ventas issued a joint press release announcing the completion of the Merger. A copy of the joint press release is attached hereto as Exhibit 99.1 to this report and is incorporated by reference in this Item 8.01.

Former New Senior stockholders will be entitled to receive a dividend of $0.45 per share of Ventas Common Stock on October 14, 2021 if they are Ventas stockholders as of the close of business on October 1, 2021, and will not receive the dividend previously announced by New Senior on August 4, 2021.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

The exhibits listed in the following Exhibit Index are filed as part of this report.

EXHIBIT INDEX

Exhibit No.	Description of Exhibit
2.1	Agreement and Plan of Merger, dated as of June 28, 2021, by and among New Senior Investment Group Inc., Ventas, Inc. and Cadence Merger Sub LLC (incorporated herein by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K dated June 29, 2021 (SEC File No. 001-36499)).
3.1	Third Amended and Restated Certificate of Incorporation of New Senior Investment Group Inc., as amended on September 21, 2021.
3.2	Second Amended and Restated Bylaws of New Senior Investment Group Inc., as amended on September 21, 2021.
99.1	Joint Press Release, dated September 21, 2021, issued by New Senior Investment Group Inc. and Ventas, Inc.
104	Cover Page Interactive Data Filed (embedded within the Inline XBLR document).

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

NEW SENIOR INVESTMENT GROUP INC.
By:	/s/ Brian K. Wood
Name:	Brian K. Wood
Title:	Vice President and Treasurer

Date: September 21, 2021

EX-3.1

Exhibit 3.1

THIRD AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

NEW SENIOR INVESTMENT GROUP INC.

Pursuant to Sections 228, 242 and 245 of the

Delaware General Corporation Law

New Senior Investment Group Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code, does hereby certify as follows:

(1) The name of the Corporation is New Senior Investment Group Inc. The Corporation was originally formed as Newcastle Senior Living Holdings LLC, a Delaware limited liability company and wholly owned subsidiary of Newcastle Investment Corp., by filing a certificate of formation with the Secretary of State of the State of Delaware on May 17, 2012. It subsequently was converted to a Delaware corporation and changed its name to New Healthcare Investment Corp. by the filing of a certificate of conversion and certificate of incorporation with the Secretary of State of the State of Delaware on May 30, 2014. On June 16, 2014, the Corporation filed a certificate of amendment with the Secretary of State of the State of Delaware to change its name to New Senior Investment Group Inc. The Corporation subsequently filed amended and restated certificates of incorporation with the Secretary of State of the State of Delaware on October 23, 2014 and June 13, 2019. On September 21, 2021, Cadence Merger Sub LLC merged with and into the Corporation, with the Corporation surviving.

(2) This Third Amended and Restated Certificate of Incorporation was duly adopted by the board of directors of the Corporation (the “Board”) and by the stockholders of the Corporation in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware, as amended from time to time, or any successor thereto (the “DGCL”).

(3) This Third Amended and Restated Certificate of Incorporation restates and integrates and further amends the certificate of incorporation of the Corporation, as heretofore amended or supplemented.

(4) Effective as of September 21, 2021 (the “Effective Date”), the text of the Certificate of Incorporation is amended and restated in its entirety as follows:

ARTICLE I

NAME

The name of the Corporation is: NEW SENIOR INVESTMENT GROUP INC.

ARTICLE II

REGISTERED OFFICE AND AGENT

The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the Corporation’s registered agent at such address is The Corporation Trust Company.

ARTICLE III

PURPOSE

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 DGCL, including, without limitation or obligation, engaging in business as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended, or any successor statute (the “Code”). References to particular sections of the Code shall include any successor provisions.

ARTICLE IV

AUTHORIZED STOCK

The total number of shares of stock (the “Capital Stock”) that the Corporation shall have authority to issue is seven hundred fifty (750), of which (i) one hundred (100) shall be shares of common stock, par value $0.01 per share (the “Common Stock”) and (ii) six hundred fifty (650) shall be shares of preferred stock, par value $0.01 per share (the “Preferred Stock”). The number of authorized shares of any of the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Common Stock or Preferred Stock voting separately as a class shall be required therefor, unless a vote of any such holders is required pursuant to this Third Amended and Restated Certificate of Incorporation, as may be amended and/or restated from time to time (the “Certificate of Incorporation”) (including any certificate of designations relating to any series of Preferred Stock).

A. Preferred Stock.

1. Issuance. Shares of Preferred Stock may be issued from time to time in one or more series. Shares of Preferred Stock which may be redeemed, purchased or acquired by the Corporation may be reissued except as otherwise provided by law or herein. Subject to the limitations set forth herein, the Board is hereby expressly authorized, by resolution or resolutions, at any time and from time to time, to provide, out of the unissued shares of Preferred Stock, for one or more series of Preferred Stock and, with respect to each such series, to fix the number of shares constituting such series and the designation of such series, the voting powers (if any) of the shares of such series, and the powers, preferences and relative, participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, of the shares of such series. Before the Corporation shall issue any shares of Preferred Stock of any series, it shall file with the Secretary of State of Delaware in the manner prescribed by the DGCL an amendment

to this Certificate of Incorporation or a Certificate of Designation setting forth the terms of the series and fixing the designations and powers, preferences and relative participating, optional or other rights, if any, and the qualifications, limitations or other restrictions, if any, relating to the shares of Preferred Stock of such series, and the number of shares of Preferred Stock of such series authorized by the Board to be issued. The powers, preferences, and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.

2. Voting Rights. Except as otherwise required by law, holders of a series of Preferred Stock, as such, shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by this Certificate of Incorporation (including any certificate of designations relating to such series of Preferred Stock).

B. Series A Preferred Stock.

1. Designation and Number. The Corporation shall have a series of Preferred Stock, having a par value of $0.01 per share, which shall be designated as 12.0% Series A Cumulative Non-Voting Preferred Stock (the “Series A Preferred Stock”) consisting of 650 shares. The rights, preferences, privileges and restrictions granted to and imposed on the Series A Preferred Stock are as set forth below in this Section B of Article IV. The Series A Preferred Stock shall be uncertificated.

2. Rank. The Series A Preferred Stock shall, with respect to dividend and redemption rights and rights upon liquidation, dissolution or winding up of the Corporation, rank senior to all classes or series of shares of Common Stock of the Corporation and to all other equity securities issued by the Corporation from time to time (together with the Common Stock, the “Junior Securities”). The term “equity securities” shall not include convertible debt securities unless and until such securities are converted into equity securities of the Corporation.

3. Dividends.

(a) Each holder of the then outstanding shares of Series A Preferred Stock shall be entitled to receive, when and as authorized by the Board, out of funds legally available for the payment of dividends, cumulative preferential cash dividends at the rate of 12.0% per annum of the total of $1,000.00 per share plus all accumulated and unpaid dividends thereon. Such dividends shall accrue on a daily basis and be cumulative from the first date on which any share of Series A Preferred Stock is issued in a private placement, such issue date to be contemporaneous with the receipt by the Corporation of such subscription funds for the Series A Preferred Stock, except that funds transferred on the first business day of a calendar year shall be deemed received on January 1 of such year (the “Original Issue Date”), and, if declared, shall be payable semi-annually in arrears on or before June 30 and December 31 of each year (each, a “Dividend Payment Date”); provided, however, that if any Dividend Payment Date is not a business day, then the dividend which would otherwise have been payable on such Dividend Payment Date may be paid on the preceding business day or the following business day with the same force and effect as if paid on such Dividend Payment Date. Any dividend payable on the Series A Preferred Stock for any partial Dividend Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months (it being understood that the dividend payable on the first Dividend Payment Date following the Original Issue Date for the

relevant Series A Preferred Stock will be for less than a full Dividend Period). A “Dividend Period” shall mean, with respect to the first “Dividend Period,” the period from and including the Original Issue Date to and including the first Dividend Payment Date, and with respect to each subsequent “Dividend Period,” the period from but excluding a Dividend Payment Date to and including the next succeeding Dividend Payment Date, or, upon a Liquidation Event or a redemption of Series A Preferred Stock, any earlier dates as of which accrued dividends are to be calculated under Section B.4 or Section B.5 of this Article IV. Dividends will be payable to holders of record of the Series A Preferred Stock pursuant to this paragraph as they appear in the share records of the Corporation at the close of business on the applicable record date, which shall be the fifteenth day of the calendar month in which the applicable Dividend Payment Date falls or on such other date designated by the Board for the payment of dividends that is not more than 30 nor less than 10 days prior to such Dividend Payment Date (each, a “Dividend Record Date”).

(b) No dividends on shares of Series A Preferred Stock shall be declared by the Corporation or paid or set apart for payment by the Corporation at such time as the terms and provisions of any written agreement between the Corporation and any party that is not an affiliate of the Corporation, including any agreement relating to its indebtedness, prohibit such declaration, payment or setting apart for payment or provide that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law. For purposes of this Certificate of Incorporation, “affiliate” shall mean, any party that controls, is controlled by or under common control with the Corporation.

(c) Notwithstanding the foregoing, dividends on the Series A Preferred Stock shall accrue whether or not the terms and provisions set forth in Section B.3.(b) of this Article IV at any time prohibit the current payment of dividends, whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are authorized or declared. Furthermore, dividends will be declared and paid when due in all events to the fullest extent permitted by law and except as provided in Section B.3.(b) of this Article IV. Accrued but unpaid dividends on the Series A Preferred Stock will accumulate as of the Dividend Payment Date on which they first become payable.

(d) Unless full cumulative dividends on all outstanding shares of the Series A Preferred Stock have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof is set apart for payment for all past dividend periods, no dividends (other than in shares of Junior Securities) shall be declared or paid or set aside for payment, nor shall any other distributions be declared or made, upon any shares of Junior Securities, nor shall any shares of Junior Securities be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for other shares of Junior Securities and except for transfers made pursuant to the provisions of Section C of Article VII below).

(e) When dividends are not paid in full (or a sum sufficient for such full payment is not set apart) on the Series A Preferred Stock, all dividends declared upon the Series A Preferred Stock shall be declared and paid pro rata based on the number of shares of Series A Preferred Stock then outstanding.

(f) Any dividend payment made on the shares of Series A Preferred Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to such shares of Series A Preferred Stock which remains payable. Holders of the Series A Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or shares, in excess of full cumulative dividends on the Series A Preferred Stock as described above.

(g) Any dividend payment made on the Series A Preferred Stock may be made via check or electronic payment. Permissible forms of electronic payment pursuant to this paragraph shall include, without limitation, Automated Clearing House (“ACH”) transfers, direct deposits or wire transfers.

4. Liquidation Preference.

(a) Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation (each a “Liquidation Event”), the holders of shares of Series A Preferred Stock then outstanding are entitled to be paid, or have the Corporation declare and set aside for payment, out of the assets of the Corporation legally available for distribution to its stockholders, a liquidation preference equal to the sum of the following (collectively, the “Liquidation Preference”): (i) $1,000.00 per share, (ii) all accrued and unpaid dividends thereon through and including the date of payment and (iii) if the Liquidation Event occurs before the Redemption Premium (as defined below) right expires the per share Redemption Premium in effect on the date of payment of the Liquidation Preference, before any distribution of assets is made to holders of any Junior Securities. In the event that the Corporation elects to set aside the Liquidation Preference for payment, the Series A Preferred Stock shall remain outstanding until the holders thereof are paid the full Liquidation Preference, which payment shall be made no later than immediately prior to the Corporation making its final liquidating distribution on the Junior Securities. In the event that the Redemption Premium in effect on the payment date is less than the Redemption Premium on the date that the Liquidation Preference was set apart for payment, the Corporation may make a corresponding reduction to the funds set apart for payment of the Liquidation Preference.

(b) If upon any Liquidation Event the available assets of the Corporation are insufficient to pay the full amount of the Liquidation Preference on all outstanding shares of Series A Preferred Stock, then the holders of the Series A Preferred Stock shall share ratably in any distribution of assets in proportion to the full Liquidation Preference to which they would otherwise be respectively entitled.

(c) After payment of the full amount of the Liquidation Preference to which they are entitled, the holders of Series A Preferred Stock will have no right or claim to any of the remaining assets of the Corporation.

(d) Upon the Corporation’s provision of written notice as to the effective date of any Liquidation Event, accompanied by a check or electronic payment in the amount of the full Liquidation Preference to which each record holder of the Series A Preferred Stock is entitled, the Series A Preferred Stock shall be cancelled and shall no longer be deemed outstanding shares of the Corporation and all rights of the holders of such Series A Preferred Stock will terminate without any further action. Such notice shall be given by electronic mail or first class mail, postage pre-paid, to each record holder of the Series A Preferred Stock at the respective addresses of such holders as the same shall appear on the share transfer records of the Corporation. Permissible forms of electronic payment pursuant to this paragraph shall include, without limitation, ACH transfers, direct deposits or wire transfers, in each case to be initiated on or before the day on which the related notice is given.

(e) The consolidation or merger of the Corporation with or into any other business enterprise or of any other business enterprise with or into the Corporation, or the sale, lease or conveyance of all or substantially all of the assets or business of the Corporation, shall not be deemed to constitute a Liquidation Event; provided, however, that any such transaction which results in an amendment, restatement or replacement of this Certificate of Incorporation that has a material adverse effect on the rights and preferences of the Series A Preferred Stock or that increases the number of authorized or issued shares of Series A Preferred Stock, shall be deemed a Liquidation Event for purposes of determining whether the Liquidation Preference is payable unless the right to receive payment is waived by holders of a majority of the outstanding shares of Series A Preferred Stock voting as a separate class (excluding any shares that are held by affiliates of the Corporation).

5. Redemption.

(a) Right of Optional Redemption. The Corporation, at its option, may redeem shares of the Series A Preferred Stock, in whole or in part, at any time or from time to time, for cash at a redemption price (the “Redemption Price”) equal to $1,000.00 per share plus all accrued and unpaid dividends thereon to and including the date fixed for redemption (except as provided in Section B.5.(c) of this Article IV), plus a redemption premium per share (each, a “Redemption Premium”) calculated as follows based on the date fixed for redemption: (i) until the earlier of (A) the second anniversary of the Original Issue Date or (B) December 31, 2023, $100.00; (ii) thereafter, no Redemption Premium. If less than all of the outstanding shares of Series A Preferred Stock are to be redeemed, the shares of Series A Preferred Stock to be redeemed may be selected by any equitable method determined by the Corporation provided that such method does not result in the creation of fractional shares.

(b) Limitations on Redemption. Unless full cumulative dividends on all shares of Series A Preferred Stock shall have been, or contemporaneously are, declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past dividend periods, no shares of Series A Preferred Stock shall be redeemed or otherwise acquired, directly or indirectly, by the Corporation unless all outstanding shares of Series A Preferred Stock are simultaneously redeemed or acquired, and the Corporation shall not purchase or otherwise acquire, directly or indirectly, any shares of any Junior Securities of the Corporation (except by exchange for shares of Junior Securities); provided, however, that the foregoing shall not prevent the purchase by the Corporation of shares transferred to a Beneficiary (as defined in Section A.1.(b) of Article VII) pursuant to Section C of Article VII in order to ensure that the Corporation remains qualified as a real estate investment trust for U.S. federal income tax purposes or the purchase or acquisition of shares of Series A Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of Series A Preferred Stock.

(c) Rights to Dividends on Shares Called for Redemption. Immediately prior to or upon any redemption of Series A Preferred Stock, the Corporation shall pay, in cash, any accumulated and unpaid dividends to and including the redemption date, unless a redemption date falls after a Dividend Record Date and prior to the corresponding Dividend Payment Date, in which case each holder of Series A Preferred Stock at the close of business on such Dividend Record Date shall be entitled to the dividend payable on such shares on the corresponding Dividend Payment Date notwithstanding the redemption of such shares before such Dividend Payment Date.

(d) Procedures for Redemption. Subject to such other procedures as the Board shall prescribe from time to time and subject to applicable law:

(i) Upon the Corporation’s provision of written notice as to the effective date of the redemption, accompanied by a check or electronic payment in the amount of the full Redemption Price through such effective date to which each record holder of Series A Preferred Stock is entitled, the Series A Preferred Stock shall be redeemed and shall no longer be deemed outstanding shares of the Corporation and all rights of the holders of such shares of Series A Preferred Stock will terminate. Such notice shall be given by electronic mail or first class mail, postage pre-paid, to each record holder of the Series A Preferred Stock at the respective addresses of such holders as the same shall appear on the share transfer records of the Corporation. No failure to give such notice or any defect therein or in the distribution thereof shall affect the validity of the proceedings for the redemption of any shares of Series A Preferred Stock except as to the holder to whom notice was defective or not given. Permissible forms of electronic payment pursuant to this paragraph shall include, without limitation, ACH transfers, direct deposits or wire transfers, in each case to be initiated on or before the day on which the related notice is given.

(ii) In addition to any information required by law or by the applicable rules of any exchange upon which the Series A Preferred Stock may be listed or admitted for trading, such notice shall state: (i) the redemption date; (ii) the Redemption Price; (iii) the number of shares of Series A Preferred Stock to be redeemed; (iv) the place or places where the Series A Preferred Stock are to be surrendered (if so required in the notice) for payment of the Redemption Price (if not otherwise included with the notice); and (v) that dividends on the shares to be redeemed will cease to accrue on such redemption date. If less than all of the shares of Series A Preferred Stock held by any holder are to be redeemed, the notice given to such holder shall also specify the number of the shares of Series A Preferred Stock held by such holder to be redeemed.

(iii) If notice of redemption of any shares of Series A Preferred Stock has been given and if the funds necessary for such redemption have been set aside by the Corporation for the benefit of the holders of any shares of Series A Preferred Stock so called for redemption, then, from and after the redemption date, dividends will cease to accrue on such shares of Series A Preferred Stock, such shares of Series A Preferred Stock shall no longer be deemed outstanding and all rights of the holders of such shares will terminate, except the right to receive the Redemption Price. If the Corporation shall so require and the notice shall so state, holders of Series A Preferred Stock to be redeemed shall surrender the certificates evidencing such Series A Preferred Stock, to the extent that such shares are certificated, at the place designated in such notice and, upon surrender in accordance with said notice of the certificates for shares of Series A Preferred Stock so redeemed (properly endorsed or assigned for transfer, if the Corporation shall so require and the notice shall so state), such shares of Series A Preferred Stock shall be redeemed by the Corporation at the Redemption Price. In case less than all of the shares of Series A Preferred Stock evidenced by any such certificate are redeemed, a new certificate or certificates shall be issued evidencing the unredeemed shares of Series A Preferred Stock without cost to the holder thereof. In the event that the shares of Series A Preferred Stock to be redeemed are uncertificated, such shares shall be redeemed in accordance with the notice and no further action on the part of the holders of such shares shall be required.

(iv) The deposit of funds with a bank or trust corporation for the purpose of redeeming the Series A Preferred Stock shall be irrevocable except that:

A. the Corporation shall be entitled to receive from such bank or trust corporation the interest or other earnings, if any, earned on any money so deposited in trust, and the holders of any shares of Series A Preferred Stock redeemed shall have no claim to such interest or other earnings; and

B. any balance of monies so deposited by the Corporation and unclaimed by the holders of the Series A Preferred Stock entitled thereto at the expiration of two years from the applicable redemption dates shall be repaid, together with any interest or other earnings thereon, to the Corporation, and after any such repayment, the holders of the shares of Series A Preferred Stock entitled to the funds so repaid to the Corporation shall look only to the Corporation for payment of the Redemption Price without interest or other earnings.

(e) Ownership Limitations. The shares of Series A Preferred Stock are subject to the provisions of Article VII of this Certificate of Incorporation, including, without limitations, the provision for the redemption of shares transferred to the Beneficiary.

(f) Status of Redeemed Shares. Any shares of Series A Preferred Stock that shall at any time have been redeemed or otherwise acquired by the Corporation shall, after such redemption or acquisition, have the status of authorized but unissued shares of Series A Preferred Stock which may be issued by the Board from time to time at its discretion.

6. Voting Rights. Except as provided in this Section B.6 of this Article IV or as required by applicable law, the holders of the Series A Preferred Stock shall not be entitled to vote on, or any notice of, any matter submitted to the stockholders of the Corporation for a vote. Notwithstanding the foregoing, the affirmative vote or consent of the holders of a majority of the outstanding Series A Preferred Stock (excluding any shares of Series A Preferred Stock that are held by affiliates of the Corporation), voting as a separate class, shall be required for (a) authorization or issuance of any equity security of the Corporation with any rights that are senior to or have parity with the Series A Preferred Stock, (b) any amendment to the Corporation’s Certificate of Incorporation which has a material adverse effect on the rights and preferences of the Series A Preferred Stock or which increases the number of authorized or issued shares of Series A Preferred Stock, or (c) any reclassification of the Series A Preferred Stock.

7. Conversion. The shares of Series A Preferred Stock are not convertible into or exchangeable for any other property or securities of the Corporation.

C. Common Stock.

1. Voting Rights. Each holder of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote; provided, however, that to the fullest extent permitted by law, holders of Common Stock, as such, shall have no voting power with respect to, and shall not be entitled to vote on, any amendment to this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) or pursuant to the DGCL.

2. Dividends and Distributions. Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of stock having a preference over or the right to participate with the Common Stock with respect to the payment of dividends and other distributions in cash, property of the Corporation or shares of stock of the Corporation, such dividends and other distributions may be declared and paid on the Common Stock out of the assets of the Corporation that are by law available therefor at such times and in such amounts as the Board in its discretion shall determine. The Board shall endeavor to authorize, and the Corporation shall declare and pay, such dividends and distributions as shall be necessary for the Corporation to qualify as a REIT under the Code (unless the Board has determined that it is no longer in the best interests of the Corporation to continue to be qualified as a REIT). Holders of Common Stock shall have no right to any dividend or distribution unless and until declared by the Board, and any such dividend or other distribution shall be subject to any conditions established by the Board in connection with the declaration of any such dividend.

3. Liquidation, Dissolution or Winding Up. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and subject to the rights, if any, of the holders of Preferred Stock or any class or series of stock having a preference over or the right to participate with the Common Stock as to distributions upon dissolution or liquidation or winding up, the holders of all outstanding shares of Common Stock shall be entitled to receive the remaining assets of the Corporation available for distribution ratably in proportion to the number of shares held by each such stockholder.

D. Transferable Shares; Preferential Dividends.

Notwithstanding any other provision in this Certificate of Incorporation, no determination shall be made by the Board nor shall any transaction be entered into by the Corporation that would cause any shares of Capital Stock (as defined in this Article IV) of the Corporation not to constitute “transferable shares” or “transferable certifications of beneficial interest” under Section 856(a)(2) of the Code or that would cause any distribution to constitute a preferential dividend as described in Section 562(c) of the Code, to the extent Section 623(c) is applicable to the Corporation (and any determination or transactions prohibited by this Section D of Article IV shall be void ab initio).

ARTICLE V

BOARD OF DIRECTORS; REIT QUALIFICATION

A. Board of Directors.

1. Board Management; Number of Directors. Except as otherwise provided in this Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under the direction of the Board. The number of directors constituting the entire Board shall be fixed only by the Board and only in the manner set forth in the Bylaws, but shall never be fewer than two (2).

2. Elections by Holders of Preferred Stock. Whenever the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series or separately as a class with one or more such other series, to elect directors at an annual or special meeting of stockholders, the election, term of office, removal and other features of such directorships shall be governed by the terms of this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) applicable thereto. Notwithstanding Section A.1 of this Article V the number of directors that may be elected by the holders of any such series of Preferred Stock shall be in addition to the number fixed pursuant to Section A.1 of this Article V.

3. Elections; Term. Directors of the Corporation need not be elected by written ballot unless the Bylaws shall so provide. Except as otherwise provided in this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) or the Bylaws, directors of the Corporation shall be elected at each annual meeting of the stockholders and shall serve until the next annual meeting of the stockholders and until their successors are duly elected and qualified.

B. REIT Qualification. The Corporation previously elected to qualify as a REIT. The Board, without any action by the stockholders, may revoke or otherwise terminate the Corporation’s REIT election pursuant to Section 856(g) of the Code or through such other means as the Board determines appropriate. In addition, the Board, without any action by the stockholders of the Corporation, shall have and may exercise, on behalf of the Corporation, without limitation, the power to determine, prospectively or retroactively, that compliance with any restriction or limitation on ownership and transfers of shares of stock of the Corporation set forth in Articles VII and VIII is no longer required in order for the Corporation to qualify as a REIT.

ARTICLE VI

BYLAWS

In furtherance and not in limitation of the powers conferred by statute, the Board is expressly authorized to make, alter, amend, or repeal the bylaws of the Corporation (as the same may be amended and/or restated from time to time, the “Bylaws”) without the assent or vote of the stockholders in any manner not inconsistent with the laws of the State of Delaware or this Certificate of Incorporation. The affirmative vote of the holders of at least a majority of the voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to make, amend, alter, change, add to or repeal any provision of the Bylaws.

ARTICLE VII

RESTRICTIONS ON OWNERSHIP AND TRANSFER;

DESIGNATION OF EXCESS SHARES

A. Restrictions

1. Definitions. For the purposes of this Article VII, the following terms shall have the following meanings:

(a) “Beneficial Ownership” shall mean ownership of Shares by a Person who (i) would be treated as an owner of such Shares either directly or constructively through the application of Section 544 of the Code, as modified by Section 856(h) of the Code or (ii) would be treated as an owner of such Shares either directly or constructively through the application of Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code. The terms “Beneficial Owner,” “Beneficially Own,” “Beneficially Owning” and “Beneficially Owned” shall have the correlative meanings.

(b) “Beneficiary” shall mean an organization or organizations described in Sections 170(b)(1)(A) and 170(c) of the Code and identified by the Board as the beneficiary or beneficiaries of the Trust.

(c) “Excepted Holder” shall mean each of Ventas, Inc., a Delaware corporation, and ECS Holdco, LLC, a Delaware limited liability company, and any person designated by the Board, in its sole and exclusive discretion, as an Excepted Holder after the Effective Date.

(d) “Market Price” shall mean the fair market value of the relevant Shares on the relevant date as determined in good faith by the Board.

(e) “Ownership Limit” shall mean with respect to the Preferred Stock for any Person other than an Excepted Holder, the Beneficial Ownership of nine and nine-tenths percent (9.9%), in number of shares or value, of the outstanding shares of any class or series of Preferred Stock of the Corporation. The value of any outstanding shares of Common Stock or shares of any class or series of Preferred Stock of the Corporation shall be determined by the Board of the Corporation in good faith which determination shall be conclusive for all purposes hereof.

(f) “Ownership Limit Termination Date” shall mean the first day after the date on which the Board determines that it is no longer in the best interests of the Corporation to attempt to, or continue to, qualify as a REIT.

(g) “Ownership Limitations” shall mean those limitations set forth in Section A.2 of this Article VII.

(h) “Person” shall mean an individual, corporation, partnership, limited liability company, estate, trust (including, without limitation, a trust qualified under Section 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity or any government or agency or political subdivision thereof and also includes a group as that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended. “Person” does not include an underwriter which participates in a public offering of Shares for a period of 25 days following the purchase by such underwriter of those Shares.

(i) “Purported Beneficial Transferee” shall mean, with respect to any purported Transfer which results in Excess Shares, the purported beneficial transferee for whom the Purported Record Transferee would have acquired Shares, if such Transfer had been valid under Section A.2 of this Article VII.

(j) “Purported Record Transferee” shall mean, with respect to any purported Transfer which results in Excess Shares, the record holder of the Shares, if such Transfer had been valid under Section A.2 of this Article VII.

(k) “REIT” shall mean a real estate investment trust under Section 856 of the Code.

(l) “Shares” shall mean the shares of the Capital Stock of the Corporation as may be authorized and issued from time to time pursuant to Article IV.

(m) “Transfer” shall mean any sale, transfer, gift, assignment, devise or other disposition of Shares (including (a) the granting of any option or entering into any agreement for the sale, transfer or other disposition of Shares or (b) the sale, transfer, assignment or other disposition of any securities or rights convertible into or exchangeable for Shares), whether voluntary or involuntary, whether of record or beneficially and whether by operation of law or otherwise.

(n) “Trust” shall mean the trust created pursuant to Section C.1 of this Article VII.

(o) “Trustee” shall mean a Person, who shall be unaffiliated with the Corporation, any Purported Beneficial Transferee and any Purported Record Transferee, identified by the Board as the trustee of the Trust.

2. Restrictions on Ownership and Transfer. Until the Ownership Limitation Termination Date:

(a) no Person (other than an Excepted Holder) shall Beneficially Own Preferred Stock in excess of the Ownership Limit;

(b) any Transfer that, if effective, would result in any Person Beneficially Owning Preferred Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of such Shares which would be otherwise Beneficially Owned by such Person in excess of such Ownership Limit, and the intended transferee shall acquire no rights to such Shares;

(c) from the first date on which the Shares are Beneficially Owned (determined without referring to any rules of attribution) by at least 100 Persons, any Transfer that, if effective, would result in Shares being Beneficially Owned by fewer than 100 Persons (determined without referring to any rules of attribution) shall be void ab initio as to the Transfer of such Shares which would be otherwise Beneficially Owned by the transferee, and the intended transferee shall acquire no rights in such Shares; and

(d) any Transfer that, if effective, would result in the Corporation being “closely held” within the meaning of Section 856(h) of the Code shall be void ab initio as to the Transfer of the Shares which would cause the Corporation to be “closely held” within the meaning of Section 856(h) of the Code, and the intended transferee shall acquire no rights in such Shares (the “Closely-Held Prohibition”).

3. Designation of Excess Shares. If, notwithstanding the other provisions contained in this Article VII, there is a purported Transfer or Beneficial Ownership in violation of the Ownership Limitations, then (a) in the event of a violation of the Ownership Limit, such number of shares of Preferred Stock in excess of the Ownership Limit shall be automatically designated as Excess Preferred Shares (the “Excess Preferred Shares”); or (b) in the event of a violation of the Closely-Held Prohibition, the Shares being Transferred (or Beneficially Owned) which would cause the Corporation to be “closely held” within the meaning of Section 856(h) of the Code (rounded up to the nearest whole Share) shall be automatically designated as Excess Preferred Shares or Excess Common Shares (the “Excess Common Shares,” together with the Excess Preferred Shares, the “Excess Shares”), as applicable. In each case, such designation shall be effective as of the close of business on the business day prior to the date of the purported Transfer.

4. Remedies for Breach. If the Board shall at any time determine in good faith that a violation of the Ownership Limitations has taken place or that a Person intends to acquire or has attempted to acquire Beneficial Ownership of any Shares in violation of the Ownership Limitations, the Board shall take such actions as it deems advisable to refuse to give effect to or to prevent such Transfer (or the violative Beneficial Ownership), including, but not limited to, refusing to give effect to any Transfer on the books of the Corporation or instituting proceedings to enjoin a Transfer; provided, however, that a designation of Excess Shares pursuant to Section A.3 of this Article VII shall be effective irrespective of any action (or non-action) by the Board.

5. Notice of Ownership or Attempted Ownership in Violation of the Ownership Limitations. Any Person who acquires or attempts to acquire Beneficial Ownership of Shares in violation of the Ownership Limitations shall immediately give written notice to the Corporation of such event and shall provide to the Corporation such other information as the Corporation may request in order to determine the effect, if any, of such acquisition or attempted acquisition on the Corporation’s status as a REIT.

6. Owners Required to Provide Information.

(a) Every Beneficial Owner of more than 5.0% (or such other lower percentages as required pursuant to regulations under the Code) of the outstanding number or value of any class or series of Shares shall, within 30 days after January 1 of each year, give written notice to the Corporation stating the name and address of such Beneficial Owner, the number of Shares Beneficially Owned, and a description of how such Shares are held. Each such Beneficial Owner shall provide to the Corporation such additional information as the Corporation may request in order to determine the effect, if any, of such Beneficial Ownership on the Corporation’s status as a REIT and to ensure compliance with the Ownership Limitations.

(b) Each Person who is a Beneficial Owner of Shares and each Person (including the shareholder of record) who is holding Shares for a Beneficial Owner shall provide to the Corporation such information as the Corporation may request, in good faith, in order to determine the Corporation’s status as a REIT or to comply with regulations promulgated under the REIT provisions of the Code.

7. Remedies Not Limited. Nothing contained in this Article VII shall limit the authority of the Board to take such other action if and as it deems necessary or advisable to protect the Corporation and the interests of its stockholders by preservation of the Corporation’s status as a REIT.

8. Ambiguity. In the case of an ambiguity in the application of any of the provisions of this Article VII, including any definition and any ambiguity with respect to which Shares are to be designated as Excess Shares in a given situation, the Board shall have the power to determine the application of the provisions of this Article VII with respect to any situation based on the facts known to it.

9. Modification of Ownership Limit. The Board may from time to time increase or decrease the Ownership Limit.

10. Exceptions. The Board, with a ruling from the Internal Revenue Service or an opinion of counsel that such exemption will not cause the Corporation to fail to qualify as a REIT or such other evidence or documents as the Board deems appropriate, may exempt a Person from the Ownership Limit if the Board obtains such representations and undertakings from such Persons as the Board determines are reasonably necessary for the Board to determine that the Corporation will retain its status as a REIT; provided that such Person agrees that any materially incorrect representation or violation or attempted violation of such undertakings will void such exception and potentially result in the designation of Shares held by such Person as Excess Shares in accordance with Section A.3 of this Article VII.

B. Legend.

Each certificate for Preferred Stock shall bear the following legend:

“The shares represented by this certificate are subject to restrictions on ownership and transfer for the purpose of the Corporation’s maintenance of its status as a real estate investment trust under the Internal Revenue Code of 1986, as amended (the “Code”). No Person other than an Excepted Holder may Beneficially Own shares of Preferred Stock in excess of 9.9% of the outstanding shares of Preferred Stock. Any Person who attempts to Beneficially Own shares in excess of the above limitation must immediately notify the Corporation. All capitalized terms used in this legend have the meanings set forth in the Third Amended and Restated Certificate of Incorporation of the Corporation, a copy of which, including the restrictions on ownership and transfer,

will be sent without charge to each stockholder who so requests. If the restrictions on ownership and transfer are violated, the shares represented hereby will be automatically designated as Excess Shares which will be held in trust by the Trustee for the benefit of the Beneficiary.”

Instead of the foregoing legend, the certificate may state that the Corporation will furnish a full statement about certain restrictions on transferability to a stockholder on request and without charge.

C. Excess Shares.

1. Ownership in Trust. Upon any purported Transfer or other event that results in the designation of Shares as Excess Shares pursuant to Section A.3 of this Article VII, such Excess Shares shall be deemed to have been transferred to the Trustee, as trustee of the Trust for the exclusive benefit of the Beneficiary. The Trust shall name a Beneficiary if one does not already exist, within five days of the discovery of any designation of any Excess Shares; provided, however, that the failure to so name a Beneficiary shall not affect the designation of Shares as Excess Shares or the transfer thereof to the Trustee. Excess Shares so held in trust shall be issued and outstanding stock of the Corporation. The Purported Record Transferee shall have no rights in such Excess Shares except as provided in Section C.5 of this Article VII.

2. Dividend Rights. Any dividends (whether taxable as a dividend, return of capital or otherwise) on Excess Shares shall be paid to the Trust for the benefit of the Beneficiary. Upon liquidation, dissolution or winding up, the Purported Record Transferee shall receive, for each Excess Share, the lesser of (a) the amount per share of any distribution made upon liquidation, dissolution or winding up or (b) the price paid by the Purported Record Transferee for the Excess Shares, or if the Purported Record Transferee did not give value for the Excess Shares, the Market Price of the Excess Shares on the day of the event causing the Excess Shares to be held in trust. Any such dividend paid or distribution paid to the Purported Record Transferee in excess of the amount provided in the preceding sentence prior to the discovery by the Trust that the Shares with respect to which the dividend or distribution was made had been designated as Excess Shares shall be repaid, upon demand, to the Trust for the benefit of the Beneficiary.

3. Rights upon Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation, (a) subject to the preferential rights of the Preferred Stock, if any, as may be determined by the Board of the Corporation and the preferential rights of the Excess Preferred Shares, if any, each holder of Excess Common Shares shall be entitled to receive, ratably with each other holder of shares of Common Stock and Excess Common Shares, that portion of the assets of the Corporation available for distribution to the holders of shares of Common Stock or Excess Common Shares which bears the same relation to the total amount of such assets of the Corporation as the number of Excess Common Shares held by such holder bears to the total number of shares of Common Stock and Excess Common Shares then outstanding; and (b) each holder of Excess Preferred Shares shall be entitled to receive that portion of the assets of the Corporation which a holder of the shares of Preferred Stock that were exchanged for such Excess Preferred Shares would have been entitled to receive had such shares of Preferred Stock remained outstanding. The Corporation, as holder of the Excess Shares in trust shall distribute ratably to the Beneficiaries of the Trust, when determined, any such assets received in respect of the Excess Shares in any liquidation, dissolution or winding up of, or any distribution of the assets of the Corporation.

4. Voting Rights. The Trustee shall be entitled to vote the Excess Shares on behalf of the Beneficiary on any matter. Subject to Delaware law, any vote cast by a Purported Record Transferee with respect to the Excess Shares prior to the discovery by the Corporation that the Excess Shares were held in trust will be rescinded ab initio; provided, however, that if the Corporation has already taken irreversible action with respect to a merger, reorganization, sale of all or substantially all of the assets, dissolution of the Corporation or other action by the Corporation, then the vote cast by the Purported Record Transferee shall not be rescinded. The owner of the Excess Shares will be deemed to have given an irrevocable proxy to the Trustee to vote the Excess Shares for the benefit of the Beneficiary.

Notwithstanding the provisions of this Article VII, until the Corporation has received notification that Excess Shares have been transferred into a Trust, the Corporation shall be entitled to rely on its share transfer and other stockholder records for purposes of preparing lists of stockholders entitled to vote at meetings, determining the validity and authority of proxies and otherwise conducting votes of stockholders.

5. Restrictions on Transfer. Excess Shares shall be transferable only as provided in this Section C.5 of Article VII. At the direction of the Board, the Trustee shall transfer the Shares held in the Trust to a Person or Persons whose ownership of such Shares will not violate the Ownership Limit. If such a transfer is made to such a Person or Persons, the interest of the Beneficiary shall terminate and the proceeds of the sale shall be payable to the Purported Record Transferee and to the Beneficiary. The Purported Record Transferee shall receive the lesser of (a) the price paid by the Purported Record Transferee for the Shares or, if the Purported Record Transferee did not give value for the Shares, the Market Price of the Shares on the day of the event causing the Shares to be held in trust, or (b) the price received by the Trust from the sale or other disposition of the Shares. Any proceeds in excess of the amount payable to the Purported Record Transferee will be paid to the Beneficiary. The Trustee shall be under no obligation to obtain the highest possible price for the Excess Shares. Prior to any transfer of any Excess Shares by the Trustee, the Corporation must have waived in writing its purchase rights under Section C.6 of this Article VII. It is expressly understood that the Purported Record Transferee may enforce the provisions of this Section C.5 of Article VII against the Beneficiary.

If any of the foregoing restrictions on transfer of Excess Shares is determined to be void, invalid or unenforceable by any court of competent jurisdiction, then the Purported Record Transferee may be deemed, at the option of the Corporation, to have acted as an agent of the Corporation in acquiring such Excess Shares in trust and to hold such Excess Shares on behalf of the Corporation.

6. Purchase Right in Excess Shares. Excess Shares shall be deemed to have been offered for sale to the Corporation, or its designee, at a price per share equal to the lesser of (i) the price per share in the transaction that created such Excess Shares (or, in the case of a devise, gift or other transaction in which no value was given for such Excess Shares, the Market Price at the time of such devise, gift or other transaction) and (ii) the Market Price on the date the Corporation or its designee accepts such offer (the “Excess Share Redemption Price”). The Trust shall have the right to

accept such offer for a period of ninety days after the later of (i) the date of the purported Transfer or other event which resulted in the designation of the Shares as Excess Shares and (ii) the date the Board determines in good faith that a purported Transfer or other event resulting in the designation of Excess Shares has occurred, if the Corporation does not receive a notice of any such Transfer pursuant to Section A.5 of this Article VII. Unless the Board determines that it is in the interests of the Corporation to make earlier payments of all of the amounts determined as the Excess Share Redemption Price per Share in accordance with the preceding sentence, the Excess Share Redemption Price may be payable at the option of the Board at any time up to but not later than five years after the date the Corporation accepts the offer to purchase the Excess Shares. In no event shall the Corporation have an obligation to pay interest to the Purported Record Transferee.

D. Severability. If any provision of this Article VII or any application of any such provision is determined to be invalid by any Federal or state court having jurisdiction over the issues, the validity of the remaining provisions shall not be affected and other applications of such provision shall be affected only to the extent necessary to comply with the determination of such court.

ARTICLE VIII

MEETINGS OF STOCKHOLDERS

Any action required or permitted to be taken by the holders of stock of the Corporation must be effected at a duly called annual or special meeting of such holders or by written consent in the manner set forth in the Bylaws. To the extent expressly permitted by this Certificate of Incorporation or the certificate(s) of designation relating to one or more series of Preferred Stock, any action required or permitted to be taken by the holders of such series of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares of the relevant class or series having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its Secretary at its principal place of business. Delivery made to the Corporation’s Secretary shall be by hand or by certified or registered mail, return receipt requested. Except as otherwise required by law and subject to the rights of the holders of any series of Preferred Stock, special meetings of the stockholders of the Corporation for any purpose or purposes may be called only as follows: (i) at any time by or at the direction of the Board, the Chairman of the Board or the President of the Corporation or (ii) by the Corporation’s Secretary, who shall call a meeting upon the written demand, which demand shall set forth the purpose or purposes for which the meeting is to be called, of holders of stock of the Corporation entitling the holders thereof to not less than a majority of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors.

ARTICLE IX

AMENDMENTS

The Corporation reserves the right to amend, alter, change, or repeal any provision of this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights at any time conferred upon the stockholders of the Corporation by this Certificate of Incorporation are granted subject to the provisions of this Article IX.

ARTICLE X

INDEMNIFICATION

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 his or her 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 his or her 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. The right to indemnification conferred by this Article X shall include the right to be paid by the Corporation the expenses (including attorneys’ fees) 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 director or officer 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 X.

The Corporation may, to the extent authorized from time to time by the Board, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article X to directors and officers of the Corporation.

The rights to indemnification and to the advance of expenses conferred in this Article X shall not be exclusive of any other right which any person may have or hereafter acquire under this Certificate of Incorporation, the Bylaws, any statute, agreement, vote of stockholders or disinterested directors or otherwise.

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.

Any repeal or modification of this Article X 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 XI

PERSONAL LIABILITY OF DIRECTORS

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 to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. If the DGCL is amended hereafter to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation shall be

eliminated or limited to the fullest extent authorized by the DGCL, as so amended. Any repeal or modification of this Article XI 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.

[remainder of page intentionally left blank]

IN WITNESS WHEREOF, the Corporation has caused this Third Amended and Restated Certificate of Incorporation to be executed on its behalf this 21^st day of September, 2021.

NEW SENIOR INVESTMENT GROUP INC.
By:	/s/ Brian K. Wood
Name:	Brian K. Wood
Title:	Vice President and Treasurer

[Signature Page to Third Amended and Restated

Certificate of Incorporation of New Senior Investment Group Inc.]

EX-3.2

Exhibit 3.2

SECOND AMENDED AND RESTATED

BYLAWS

OF

NEW SENIOR INVESTMENT GROUP, INC.

a Delaware corporation

Dated: September 21, 2021

TABLE OF CONTENTS

Page

ARTICLE I	REGISTERED AGENT AND OFFICE	1
ARTICLE II	STOCKHOLDERS	1
Section 1.	Annual Meetings	1
Section 2.	Purposes of Annual Meeting	1
Section 3.	Failure to Elect Directors at Annual Meeting	1
Section 4.	Special Meetings	1
Section 5.	Notice of Meetings and Adjourned Meetings	2
Section 6.	Notice by Electronic Transmission	2
Section 7.	Quorum	2
Section 8.	Organization	3
Section 9.	Voting	3
Section 10.	Voting of Shares by Certain Holders.	3
Section 11.	List of Stockholders	4
Section 12.	Inspectors	4
Section 13.	Informal Action by Stockholders	4
Section 14.	Remote Communications	4
ARTICLE III	DIRECTORS	4
Section 1.	Power, Number and Term of Directors	4
Section 2.	Quorum	5
Section 3.	Vacancies	5
Section 4.	Meetings	5
Section 5.	Attendance by Communications Equipment	5
Section 6.	Presumption of Assent	5
Section 7.	Committees	6
Section 8.	Dividends and Reserves	6
Section 9.	Removal of Directors	6
Section 10.	Informal Action	7
ARTICLE IV	WAIVER OF NOTICE	7
ARTICLE V	OFFICERS	7
Section 1.	Number	7
Section 2.	Term and Removal	7
Section 3.	Chairman of the Board	7
Section 4.	President	8
Section 5.	Vice Presidents	8
Section 6.	Chief Financial Officer	8
Section 7.	Treasurer	8
Section 8.	Secretary	8
Section 9.	Assistant Treasurers and Assistant Secretaries	9
ARTICLE VI	STOCK CERTIFICATES	9
Section 1.	Form of Stock Certificates	9
Section 2.	Execution and Issuance of Certificates of Stock	9

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Section 3.	Transfer of Certificates of Stock	9
Section 4.	Fixing the Date for Determination of Stockholders of Record	10
Section 5.	Failure to Fix Record Date	10
Section 6.	Lost, Stolen or Destroyed Stock Certificates	10
Section 7.	Transfer Agent and Registrar	10
Section 8.	Examination of Books by Stockholders	10
ARTICLE VII	INTEREST OF DIRECTORS OR OFFICERS IN CERTAIN TRANSACTIONS	11
Section 1.	Action or Criteria Required	11
Section 2.	Effect of Quorum	11
ARTICLE VIII	INDEMNIFICATION	11
Section 1.	Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation	11
Section 2.	Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation	12
Section 3.	Authorization of Indemnification	12
Section 4.	Good Faith Defined	13
Section 5.	Indeminification by a Court	13
Section 6.	Expenses Payable in Advance	13
Section 7.	Non-exclusivity of Indemnfication and Advancement of Expenses	13
Section 8.	Insurance	14
Section 9.	Certain Definitions	14
Section 10.	Survival of Indemnification and Advancement of Expenses	15
Section 11.	Contractual Rights	15
Section 12	Limitation on Indemnification	15
Section 13.	Indemnification of Employees and Agents	15
Section 14.	Severability	16
ARTICLE IX	FISCAL YEAR	16
ARTICLE X	CORPORATE SEAL	16
ARTICLE XI	AMENDMENTS	17
ARTICLE XII	ELECTRONIC RECORDS AND SIGNATURES	17

A-2

SECOND AMENDED AND RESTATED

BYLAWS

OF

NEW SENIOR INVESTMENT GROUP, INC.

Adopted by the board of directors (the “Board”) of New Senior Investment Group Inc. on October 16, 2014, as amended and restated by the Board effective as of April 26, 2021, as further amended and restated by the Board effective as of September 21, 2021 (as amended and restated, the “Bylaws”).

ARTICLE I

REGISTERED AGENT AND OFFICE

The name and address of the corporation’s registered agent, which address is also the location of its registered office, in the State of Delaware are as follows:

The Corporation Trust Company

1209 Orange Street

Wilmington, Delaware 19801

ARTICLE II

STOCKHOLDERS

Section 1. Annual Meetings. The annual meeting of the stockholders shall be held at such time and place and on such date in each year, within or without the State of Delaware, as may be determined by the Board as shall be designated in the notice of the meeting.

Section 2. Purposes of Annual Meeting. The annual meeting of the stockholders shall be held for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting, notice of which shall be given in the notice of the meeting.

Section 3. Failure to Elect Directors at Annual Meeting. If the election of directors shall not be held on the day designated for any annual meeting, or at any adjournment thereof, the Board shall cause the election to be held at a special meeting of the stockholders as soon thereafter as convenient. At such meeting, the stockholders may elect directors and transact other business with the same force and effect as at an annual meeting.

Section 4. Special Meetings. Special meetings of the stockholders shall be held at such time and place and on such date in each year, within or without the State of Delaware, as may be determined by the person or persons calling the meeting and as shall be designated in the notice of the meeting. Special meetings of the stockholders may be called by the Board, the chairman of the board of directors, if one has been elected (the “Chairman”), or the President and

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shall be called by the Chairman, the President or the Secretary at the request in writing of stockholders owning at least one-fifth of the issued and outstanding shares of capital stock of the corporation entitled to vote for directors of the corporation. The person(s) calling a meeting pursuant to this Section 4 of Article II shall specify in writing when such a meeting is called the purposes thereof, and no business other than that so specified in such notice shall be considered at any special meeting.

Section 5. Notice of Meetings and Adjourned Meetings. Unless waived as provided below, and except as provided in Section 230 of the General Corporation Law of the State of Delaware, as may be amended from time to time (the “DGCL”), not less than ten nor more than 60 days before any stockholders’ meeting, the Chairman, the President, the Secretary or an Assistant Secretary shall give each stockholder entitled to vote at the meeting written notice of the place, date and hour of the meeting and the purpose or purposes for which the meeting is called. Such notice shall be mailed to each stockholder at his address as it appears on the corporation’s records. When a meeting is adjourned to another time or place, notice need not be given if the time and place of the adjourned meeting are announced at the meeting at which the adjournment is taken. If the adjournment is for a period of more than 30 days, or if, after the adjournment, a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting. Except as otherwise expressly provided by statute, no publication of any notice of a stockholders’ meeting shall be required. Any stockholder, either before or after any meeting, may waive in writing or by electronic transmission any notice required to be given by law or pursuant to these Bylaws.

Section 6. Notice by Electronic Transmission. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the corporation under any provision of the DGCL, the Third Amended and Restated Certificate of Incorporation, as it may be amended or supplemented (the “Certificate of Incorporation”) or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom notice is given. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any such consent shall be deemed revoked if the corporation is unable to deliver by electronic transmission two consecutive notices given by the corporation in accordance with such consent and such inability becomes known to the Secretary or an Assistant Secretary of the corporation or to the transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. “Electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

Section 7. Quorum. Except as otherwise provided by law or the Certificate of Incorporation, the presence, in person or by proxy, of the holders of record of a majority of the shares of the capital stock of the corporation then issued and outstanding and entitled to vote at the meeting shall constitute a quorum for the transaction of business to be considered at such meeting; provided, however, that no action required by law or by the Certificate of Incorporation or these Bylaws to be authorized as taken by the holders of a designated proportion of a

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particular class or series of shares may be authorized or taken by a lesser proportion; and provided, further, that if a separate class vote is required with respect to any matter, the holders of a majority of the outstanding shares of such class, present in person or by proxy, shall constitute a quorum of such class, and, except as otherwise provided by law or the Certificate of Incorporation, the affirmative vote of a majority of shares of such class so present shall be the act of such class. In the absence of a quorum at any meeting or any adjournment thereof, a majority of those present, in person or by proxy and entitled to vote, may adjourn the meeting from time to time. At any adjourned meeting at which a quorum is present, any business which might have been transacted at the meeting as originally called, may be transacted.

Section 8. Organization. Meetings of the stockholders shall be presided over by the Chairman, or if the Chairman is not present or one has not been elected, by the President, or, if neither the Chairman nor the President is present, by a chairman to be chosen by a majority in interest of the stockholders entitled to vote who are present in person or by proxy at the meeting. The Secretary of the corporation, or in the Secretary’s absence, an Assistant Secretary, shall act as secretary of every meeting of the stockholders, but if neither the Secretary nor an Assistant Secretary is present, a majority in interest of the stockholders entitled to vote who are present in person or by proxy at the meeting shall choose any person present thereat to act as secretary of the meeting.

Section 9. Voting. Except as otherwise provided by law or the Certificate of Incorporation, and subject to the provisions of Section 4 and Section 5 of Article VI of these Bylaws, at every meeting of the stockholders, each stockholder of the corporation entitled to vote at the meeting shall have one vote, in person or by proxy, for each share of stock having voting rights held by the stockholder. Any stockholder entitled to vote may do so either in person or by proxy appointed pursuant to Section 212 of the DGCL, provided that a copy of the writing or transmission of the stockholder authorizing the proxy to act for the stockholder shall be delivered to the secretary of the meeting; provided, however, that no proxy shall be voted on after three years from its date unless the proxy provides for a longer period. Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, all matters coming before any meeting of the stockholders shall be decided by the vote of a majority in interest of the stockholders present, in person or by proxy, at the meeting and entitled to vote, a quorum being present. Unless otherwise provided in the Certificate of Incorporation, voting at all elections for directors need not be by ballot and shall not be cumulative.

Section 10. List of Stockholders. A complete list of the stockholders entitled to vote at each meeting of the stockholders, arranged in alphabetical order and the number of shares registered in the name of each stockholder, shall be prepared by the Secretary or other officer of the corporation having charge of the stock ledger, at least ten days before the meeting. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city, town or village where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held, and the list shall be produced and kept at the time and place of the meeting during the whole time thereof for inspection by any stockholder who may be present.

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Section 11. Inspectors. At any meeting of the stockholders, the Chairman, if one has been elected, or if not, the chairman of the meeting appointed pursuant to Section 8 of this Article II may, or upon the request of any one or more stockholders or proxies holding or representing not less than ten percent of the outstanding shares shall, appoint one or more persons as inspectors for such meeting. Such inspectors shall ascertain and report the number of shares represented at the meeting, based upon their determination of the validity and effect of proxies; count all votes and report the results; and do all such other acts as are proper to conduct the election and voting with impartiality and fairness. Each report of an inspector shall be in writing and signed by the inspector or by a majority of them if there be more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the number of shares represented at the meeting and the results of the voting shall be prima facie evidence thereof.

Section 12. Informal Action by Stockholders. Except as otherwise provided by the Certificate of Incorporation, any action required to be taken at a meeting of the stockholders, or any other action which may be taken at a meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a written consent, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote were present and voted. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

Section 13. Remote Communications. If authorized by the Board, and subject to such guidelines as the Board may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communications, (a) participate in a meeting of stockholders and (b) be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication; provided, that (i) the corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the corporation.

ARTICLE III

DIRECTORS

Section 1. Power, Number and Term of Directors. Except as otherwise provided by law or the Certificate of Incorporation, the property, affairs and business of the corporation shall be managed by the Board. The number of directors constituting the entire Board shall be not less than two, as fixed from time to time by resolution of either a majority of the stockholders entitled to vote on the election of directors, or a majority of the number of directors that, immediately

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prior to such proposed change, had been fixed in the manner prescribed by this Section 1 of Article III; provided, however, that the number of directors shall not be reduced so as to shorten the term of any director at the time in office. Subject to Section 3 of Article II above, directors shall be elected at the annual meeting of the stockholders and each director shall be elected to the Board to serve for one year or until the director’s successor is elected and qualified or until the director’s earlier resignation or removal. If the number of directors is increased, the additional directors may be elected by a majority of the directors in office at the time of the increase, or if not so elected prior to the next meeting of the stockholders, the additional directors shall be elected by the stockholders. Directors need not be stockholders of the corporation.

Section 2. Quorum. A majority of the members of the Board in office shall constitute a quorum for the transaction of business; provided, however, a majority of directors then in office shall constitute a quorum for filling a vacancy on the board. If at any meeting of the Board a quorum shall not be present, a majority of the directors present may, without further notice, adjourn the meeting from time to time until a quorum shall have been obtained.

Section 3. Vacancies. In case one or more vacancies shall occur in the Board by reason of death, resignation or otherwise, except insofar as otherwise provided in the case of a vacancy or vacancies occurring by reason of removal by the stockholders, the remaining directors, although less than a quorum, may by a vote of the majority of the directors then in office elect a successor or successors for the unexpired term or terms.

Section 4. Meetings. Meetings of the Board, annual, regular and special, shall be held at such place within or without the State of Delaware as may from time to time be fixed by resolution of the Board or as may be specified in the notice of meeting. Regular meetings of the Board shall be held at such times as may from time to time be fixed by resolution of the Board, and no notice (other than the resolution) need be given as to any regular meeting. Special meetings may be held at any time upon the call of the Chairman, if one has been elected, the President, any Vice President or the Secretary, or any two directors, by oral, telegraphic, electronic transmission or written notice duly served on or sent or mailed to each director not less than 2 days before the meeting. An annual meeting of the Board shall be held without notice immediately after, and at the same place as, the annual meeting of the stockholders. Meetings may be held at any time without notice if all the directors are present or if, at any time before or after the meeting, those not present waive notice of the meeting in writing.

Section 5. Attendance by Communications Equipment. Unless otherwise restricted by the Certificate of Incorporation, members of the Board or of any committee designated by the Board may participate in a meeting of the Board or any such committee by means of conference telephone or similar communications equipment whereby all persons participating in the meeting can hear each other. Participation in any meeting by such means shall constitute presence in person at such meeting.

Section 6. Presumption of Assent. A director of the corporation who is present at a meeting of the Board at which action on any corporate matter is taken shall be conclusively presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to the action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward his written dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. The right to dissent shall not apply to a director who voted in favor of the action.

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Section 7. Committees. The Board may, in its discretion, by the affirmative vote of a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether he or they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of the absent or disqualified member. Except as otherwise provided by law or these Bylaws, any committee, to the extent provided by resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the corporation. No committee shall have or exercise the powers and authority of the Board with respect to filling vacancies on the Board or in any committee of the directors, amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, amending the Bylaws, or, unless a resolution of the Board setting forth the authority of the applicable committee expressly so provides, declaring a dividend or authorizing the issuance of stock. A majority of the members of a committee may determine its action and fix the time and place of its meetings, unless the Board shall otherwise provide. The Board shall have the power at any time to fill vacancies in, to change the membership of, or to discharge any committee.

Section 8. Dividends and Reserves. Subject to applicable law and the Certificate of Incorporation, the Board shall have full power to determine whether any, and if any, what part of any, funds legally available for the payment of dividends shall be declared in dividends and paid to the stockholders. The division of the whole or any part of funds legally available shall rest wholly within the lawful discretion of the Board, and it shall not be required at any time, against such discretion, to divide or pay any part of such funds among or to the stockholders as dividends or otherwise. The Board may set apart out of funds legally available for the payment of dividends a reserve or reserves for any proper purpose, and may from time to time, in its absolute judgment and discretion, increase, abolish, diminish and vary any reserve or reserves so set apart.

Section 9. Removal of Directors. At any duly called and held special meeting of the stockholders, any director or directors may, by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote in an election of directors, be removed from office, either with or without cause; provided, however, that, if the stockholders of the corporation are entitled under the provisions of the Certificate of Incorporation to exercise cumulative voting rights in the election of directors, then no removal shall be effective if the holders of that proportion of the shares of stock outstanding and entitled to vote for an election of directors as could elect to the full Board as then provided by these Bylaws the director or directors sought to be removed shall vote against removal. The successor or successors to any director or directors so removed may be elected by the stockholders at the meeting at which removal was effectuated. The remaining directors may, to the extent vacancies are not filled by election by the stockholders, fill any vacancy or vacancies created by the removal.

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Section 10. Informal Action. Any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if a written consent thereto is signed by all members of the Board or of the committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or the committee.

ARTICLE IV

WAIVER OF NOTICE

Whenever, by law, the Certificate of Incorporation or these Bylaws, notice is required to be given, a written waiver thereof, signed by the person entitled to notice, whether before or after the date of the meeting, shall be deemed equivalent to notice. Attendance of a person at a meeting of the stockholders, the Board or any committee designated by the Board shall constitute a waiver of notice of the meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or any committee designated thereby need be specified in any written waiver of notice unless so required by law, the Certificate of Incorporation or these Bylaws.

ARTICLE V

OFFICERS

Section 1. Number. At its annual meeting the Board shall elect a President and a Secretary and, from time to time, may elect a Chairman, a Chief Financial Officer, a Treasurer, one or more Vice Presidents and such Assistant Secretaries, Assistant Treasurers and other officers as the Board may deem proper, each of whom shall have such authority and perform such duties as are set forth in these Bylaws or any resolution of the Board from time to time not inconsistent with these Bylaws, and such implied authority as is required by the common law from time to time. Unless the Certificate of Incorporation otherwise provides, any number of offices may be held by the same person.

Section 2. Term and Removal. The term of office of each officer shall be one year or until the officer’s successor is elected and qualified or until the officer’s earlier resignation or removal, but any officer may be removed from office, either with or without cause, at any time by the affirmative vote of a majority of the members of the Board then in office. A vacancy in any office arising from any cause may be filled for the unexpired portion of the term by the Board.

Section 3. Chairman of the Board. The Chairman of the Board, if one has been elected, shall preside at all meetings of the stockholders and of the Board. In general, the Chairman shall perform such duties as may be prescribed by the Board from time to time.

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Section 4. President. The President shall be the chief executive officer of the corporation and shall in general supervise and control all of the business and affairs of the corporation and shall also be the chief operating officer of the corporation and be subject to the direction and control of the Board. The President shall preside at all meetings of the stockholders and of the Board if a Chairman has not been elected or in the absence of the Chairman. The President shall have the authority to sign certificates for shares of the corporation, deeds, mortgages, bonds, contracts or other instruments which require the President’s signature, except in cases where the signing and execution thereof shall be expressly delegated by the Board or by these Bylaws to some other officer or agent of the corporation or shall be required by law to be otherwise signed or executed. In general, the President shall perform all duties incident to the office of President and chief administrative officer of the corporation and such other duties as may be prescribed by the Board from time to time.

Section 5. Vice Presidents. In the absence of the President or in the event of the President’s inability or refusal to act, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and the Vice President, when so acting, shall have all of the powers and be subject to all the restrictions upon the President. Each Vice President shall perform such other duties as from time to time may be assigned to the Vice President by the Chairman, the President or the Board. The authority of Vice Presidents to sign in the name of the corporation certificates for shares of the corporation, deeds, mortgages, bonds, contracts or other instruments shall be coordinated with like authority of the President.

Section 6. Chief Financial Officer. The Chief Financial Officer shall be the principal financial officer of the corporation, and shall perform such other duties as from time to time may be assigned to the Chief Financial Officer by the Chairman, the President or the Board.

Section 7. Treasurer. The Treasurer shall have charge and custody of and be responsible for all funds and securities of the corporation, receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these Bylaws. If required by the Board, the Treasurer shall give a bond for the faithful discharge of the Treasurer’s duties in such sum and with such surety or sureties as the Board shall determine. The Treasurer shall in general perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to the Treasurer by the Chairman, if one has been elected, the President or the Board.

Section 8. Secretary. The Secretary shall: (a) keep records of corporate action, including the minutes of meetings of the stockholders and the Board in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation; (d) keep a register of the post office address of each stockholder which shall be furnished to the Secretary by such stockholder; (e) sign, with the Chairman, if one has been elected, the President or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by resolution of the Board; (f) have general charge of the stock transfer books of the corporation; and (g) in general, perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to the Secretary by the Chairman, if one has been elected, the President or the Board.

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Section 9. Assistant Treasurers and Assistant Secretaries. The Assistant Treasurers shall, if required by the Board, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board shall determine. The Assistant Secretaries as thereunto authorized by the Board may sign, with the Chairman, if one has been elected, the President or a Vice President, certificates for shares of the corporation, the issuance of which shall have been authorized by a resolution of the Board. The Assistant Treasurers and Assistant Secretaries in general shall perform such duties as shall be assigned to them by the Treasurer or the Secretary, respectively, or by the Chairman, if one has been elected, the President or the Board.

ARTICLE VI

STOCK CERTIFICATES

Section 1. Form and Execution of Stock Certificates. The shares of the corporation shall be represented by certificates, or shall be uncertificated. Certificates for the shares of stock, if any, shall be in such form as is consistent with the Certificate of Incorporation and applicable law. Every holder of stock in the corporation represented by certificate shall be entitled to have a certificate signed by or in the name of the corporation by such officers as provided for in Section 158 of the DGCL certifying the number of shares owned by him in the corporation. Any or all of the signatures on the certificate may be facsimiles. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.

Section 2. Transfers.

(a) Transfers of record of shares of stock of the corporation shall be made only upon its books by the holders thereof, in person or by attorney duly authorized, and, in the case of stock represented by certificate, upon the surrender of a properly endorsed certificate or certificates for a like number of shares.

(b) In addition to any restrictions in the Certificate of Incorporation, the corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the corporation to restrict the transfer of shares of stock of the corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.

Section 3. Fixing the Date for Determination of Stockholders of Record. To determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or any other distribution or allotment of any rights, or entitled to exercise any rights, in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix in advance a

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record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. To determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board may fix in advance a record date, which shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board. No record date shall precede the date upon which the resolution fixing such date is adopted by the Board. A determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting unless the Board fixes a new record date for the adjourned meeting.

Section 4. Failure to Fix Record Date. If no record date is fixed in accordance with Section 4 of this Article VI:

(a) The record date for determining stockholders entitled to notice or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or if the notice is waived, at the close of business on the day next preceding the day on which the meeting is held.

(b) The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation by delivery to the place where the proceedings of the corporation are recorded and the custodian of such proceedings. When prior action by the Board is required by law, the record date shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.

(c) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

Section 5. Lost, Stolen or Destroyed Stock Certificates. No stock certificate representing shares of the corporation shall be issued in place of any certificate alleged to have been lost, stolen or destroyed except upon delivery to the corporation of such evidence as the Board may in its discretion require. The Board may also require a bond to be delivered to the corporation upon such terms and secured by such surety as the board shall deem fit.

Section 6. Transfer Agent and Registrar. The Board may appoint one or more transfer agents or one or more transfer clerks and one or more registrars and may require stock certificates, if any, to bear the signature or signatures of any of them.

Section 7. Examination of Books by Stockholders. The Board shall have power to determine, from time to time, whether and to what extent and at what times and places and under what conditions and regulations the accounts and books and documents of the corporation, or any of them, shall be open to the inspection of the stockholders; and no stockholder shall have any right to inspect any account or book or document of the corporation except as otherwise, and only to the extent, provided by law.

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ARTICLE VII

INTEREST OF DIRECTORS OR OFFICERS

IN CERTAIN TRANSACTIONS

Section 1. Action or Criteria Required. No contract or transaction between the corporation and one or more of its directors or officers, and no contract or transaction between the corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction, or solely because the vote of an interested director is counted for such purposes, if:

(a) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or

(b) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or

(c) the contract or transaction is fair as to the corporation as to the time it is authorized, approved or ratified, by the Board, a committee thereof, or the stockholders.

Section 2. Effect of Quorum. Common or interested directors may be counted in determining the presence of a quorum at any meeting of the Board or of a committee thereof.

ARTICLE VIII

INDEMNIFICATION

Section 1. Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify and hold harmless to the fullest extent authorized by Delaware law 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 such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation 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 such person in connection with such action, suit or proceeding if such person acted in good faith and

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in a manner such 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 such 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 such 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 such person’s conduct was unlawful..

Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, 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 such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation 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 such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; 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 of the State of Delaware 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 that the Court of Chancery or such other court shall deem proper.

Section 3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (iv) by the stockholders. Such determination shall be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation. To the extent, however, that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.

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Section 4. Good Faith Defined. For purposes of any determination under Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to such person by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.

Section 5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Section 1 or Section 2 of this Article VIII. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application; provided, however, that such notice shall not be a requirement for an award of or a determination of entitlement to indemnification or advancement of expenses.

Section 6. Expenses Payable in Advance. To the fullest extent authorized by Delaware law, expenses (including attorneys’ and other professionals’ fees and disbursements and court costs) incurred by a director or officer in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.

Section 7. Non-exclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, these Bylaws,

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any agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of and advancement of expenses to the persons specified in Section 1 and Section 2 of this Article VIII shall be made to the fullest extent permitted by law, including as a result of any amendment of the DGCL expanding the right of corporations to indemnify and advance expenses. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL, or otherwise. The Corporation’s obligation, if any, to indemnify, to hold harmless, or to provide advancement of expenses to any indemnitee who was or is serving at its request as a director, officer, employee, agent or manager of another corporation, partnership, limited liability company, joint venture, trust or other enterprise or nonprofit entity (including service with respect to an employee benefit plan) shall be reduced by any amount such indemnitee actually collects as indemnification, holding harmless, or advancement of expenses from such other corporation, partnership, limited liability company, joint venture, trust or other enterprise nonprofit entity.

Section 8. Insurance. The Corporation may purchase and maintain at its expense insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation 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 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 or the obligation to indemnify such person against such liability under the provisions of this Article VIII or Delaware law. Nothing contained in this Article VIII shall prevent the Corporation from entering into with any person any agreement that provides independent indemnification, hold harmless or exoneration rights to such person or further regulates the terms on which indemnification, hold harmless or exoneration rights are to be provided to such person or provides independent assurance of any one or more of the Corporation’s obligations to indemnify, hold harmless, and exonerate such person, whether or not such indemnification, hold harmless or exoneration rights are on the same or different terms than provided for by this Article VIII or is in respect of such person acting in any other capacity, and nothing contained herein shall be exclusive of, or a limitation on, any right to indemnification, to be held harmless, to exoneration or to advancement of expenses to which any person is otherwise entitled. The Corporation may create a trust fund, grant a security interest or use other means (including a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification and the advancement of expenses as provided in this Article VIII.

Section 9. Certain Definitions. For purposes of this Article VIII, references to the “Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation,

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partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. The term “another enterprise” as used in this Article VIII shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. For purposes of this Article VIII, references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VIII.

Section 10. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.

Section 11. Contractual Rights. The rights conferred upon any person in this Article VIII shall be contract rights and such rights shall continue as to any person who has ceased to be a director, officer, employee, trustee or agent, and shall inure to the benefit of such person’s heirs, executors and administrators. A right to indemnification or to advancement of expenses arising under any provision of this Article VIII shall not be eliminated or impaired by an amendment, alteration or repeal of any provision of these Bylaws of this Corporation after the occurrence of the act or omission that is the subject of the proceeding for which indemnification or advancement of expenses is sought (even in the case of a proceeding based on such a state of facts that is commenced after such time).

Section 12. Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to indemnify any director or officer (or such director’s or officer’s heirs, executors or personal or legal representatives) or advance expenses 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.

Section 13. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VIII to directors and officers of the Corporation.

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Section 14. Severability. If this Article VIII or any portion hereof shall be invalidated or held to be unenforceable on any ground by any court of competent jurisdiction, the decision of which shall not have been reversed on appeal, this Article VIII shall be deemed to be modified to the minimum extent necessary to avoid a violation of law and, as so modified, this Article and the remaining provisions hereof shall remain valid and enforceable in accordance with their terms to the fullest extent permitted by law.

ARTICLE IX

FISCAL YEAR

The fiscal year of the corporation shall be as determined by the Board. In the absence of such determination, the fiscal year of the corporation shall be the calendar year.

ARTICLE X

CORPORATE SEAL

The Board may provide a suitable seal, including duplicates thereof, containing the name of the corporation.

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ARTICLE XI

AMENDMENTS

These Bylaws shall be subject to alteration, amendment or repeal, and new Bylaws, not inconsistent with any provision of law or the Certificate of Incorporation, may be made, by the affirmative vote of the holders of a majority in interest of the stockholders of the corporation present in person or by proxy at any annual or special meeting and entitled to vote thereat, a quorum being present. In addition, the Bylaws shall be subject to alteration, amendment or repeal, and new Bylaws, not inconsistent with any process of law or the Certificate of Incorporation, may be made, by the affirmative vote of a majority of the whole Board at any meeting thereof if, and only if, the power to make, amend, alter or repeal the Bylaws shall have been granted to the Board in the Certificate of Incorporation. Notice of the proposal to make, alter, amend or repeal the Bylaws of the corporation shall be included in the notice of such meeting of the Board or of the stockholders, as the case may be.

ARTICLE XII

ELECTRONIC RECORDS AND SIGNATURES

The corporation shall be permitted to keep, or cause to be kept, appropriate books and records with respect to the corporation’s business solely in electronic form. Facsimile or other electronic signatures shall be deemed acceptable and binding with respect to any agreement, document or certificate signed or executed by an authorized representative or authorized officer of the corporation.

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EX-99.1

Exhibit 99.1

Ventas Completes Acquisition of New Senior Investment Group Inc.

CHICAGO & NEW YORK — (BUSINESS WIRE) — Ventas, Inc. (NYSE: VTR) (“Ventas”) and New Senior Investment Group Inc. (“New Senior”) today announced that Ventas has completed its acquisition of New Senior in an all-stock transaction (the “Transaction”), valued at approximately $2.3 billion, including New Senior debt assumed or repaid by Ventas. Under the terms of the merger agreement, New Senior stockholders are entitled to receive 0.1561 shares of newly issued Ventas common stock for each share of New Senior common stock that they owned immediately prior to the effective time of the merger.

“The acquisition of the New Senior portfolio positions Ventas to capture the powerful senior housing upside at a cyclical inflection point, adds a high quality independent living portfolio in advantaged markets with positive supply and demand fundamentals, and builds on existing relationships with leading operators and our deep experience in independent living at an attractive valuation that is accretive to Ventas,” said Debra A. Cafaro, Ventas Chairman and CEO. “I commend Susan Givens and her excellent team for their professionalism and accomplishments,” she added.

Ventas’s third quarter 2021 guidance issued on August 6, 2021 excluded any contribution or impact from the Transaction.

Effective today, shares of New Senior common stock will no longer be traded on the New York Stock Exchange.

About Ventas

Ventas, an S&P 500 company, operates at the intersection of two powerful and dynamic industries – healthcare and real estate. As one of the world’s foremost Real Estate Investment Trusts, Ventas’s portfolio of approximately 1,300 properties is buoyed by the demographic tailwind of a large and growing aging population. Ventas uses the power of capital to unlock the value of senior living communities, life science, research & innovation properties, medical office & outpatient facilities and other healthcare real estate, working with leading care providers, developers, research, educational and medical institutions, innovators and healthcare organizations. Ventas has followed a successful strategy that endures: combining a high-quality diversified portfolio of properties and capital sources to manage through cycles, working with industry leading partners, and a collaborative and experienced team focused on producing consistent growing cash flows and superior returns on a strong balance sheet, ultimately rewarding Ventas stakeholders.

About New Senior

New Senior Investment Group Inc. is a real estate investment trust with a diversified portfolio of senior housing properties located across the United States. New Senior is one of the largest owners of senior housing properties, with 103 properties across 36 states.

Forward Looking Statements

This communication includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements include, among others, statements of expectations, beliefs, future plans and strategies, anticipated results from operations and developments and other matters that are not historical facts. Forward-looking statements include, among other things, statements regarding Ventas’s and Ventas’s officers’ intent, belief or expectation as identified by the use of words such as “may,” “will,” “project,” “expect,” “believe,” “intend,” “anticipate,” “seek,” “target,” “forecast,” “plan,” “potential,” “estimate,” “could,” “would,” “should” and other comparable and derivative terms or the negatives thereof.

Forward-looking statements are based on management’s beliefs as well as on a number of assumptions concerning future events. You should not put undue reliance on these forward-looking statements, which are not a guarantee of performance and are subject to a number of uncertainties and other factors that could cause actual events or results to differ materially from those expressed or implied by the forward-looking statements. You are urged to carefully review the disclosures Ventas and New Senior make concerning risks and uncertainties that may affect Ventas’s and New Senior’s business and future financial performance in Ventas’s and New Senior’s filings with the Securities and Exchange Commission (“SEC”), including those made in the “Risk Factors” section and “Management’s Discussion & Analysis of Financial Condition and Results of Operations” section of Ventas’s and New Senior’s most recently filed Annual Report on Form 10-K and Quarterly Report on Form 10-Q. Ventas does not undertake a duty to update these forward-looking statements, which speak only as of the date on which they are made.

Certain factors that could affect Ventas’s future results and Ventas’s ability to achieve its stated goals include, but are not limited to: (a) the impact of the ongoing COVID-19 pandemic, including of the Delta or any other variant, on Ventas’s revenue, level of profitability, liquidity and overall risk exposure and the implementation and impact of regulations related to the CARES Act and other stimulus legislation and any future COVID-19 relief measures; (b) Ventas’s ability to achieve the anticipated benefits and synergies from the acquisition of, and the risk of greater than expected costs or other difficulties related to the integration of, New Senior; (c) Ventas’s exposure and the exposure of Ventas’s tenants, borrowers and managers to complex healthcare and other regulation and the challenges and expense associated with complying with such regulation; (d) the potential for significant general and commercial claims, legal actions, regulatory proceedings or enforcement actions that could subject Ventas or Ventas’s tenants, borrowers or managers to increased operating costs and uninsured liabilities; (e) the impact of market and general economic conditions, including economic and financial market events, or events that affect consumer confidence, Ventas’s occupancy rates and resident fee revenues, and the actual and perceived state of the real estate markets, labor markets and public capital markets; (f) Ventas’s ability, and the ability of Ventas’s tenants, borrowers and managers, to navigate the trends impacting Ventas’s or their businesses and the industries in which Ventas or they operate; (g) the risk of bankruptcy, insolvency or financial deterioration of Ventas’s tenants, borrowers, managers and other obligors and Ventas’s ability to foreclose successfully on the collateral securing Ventas’s loans and other investments in the event of a borrower default; (h) Ventas’s ability to identify and consummate future investments in or dispositions of healthcare assets and effectively manage Ventas’s portfolio opportunities and Ventas’s investments in co-investment vehicles; (i) Ventas’s ability to attract and retain talented employees; (j) the limitations and significant requirements imposed upon Ventas’s business as a result of Ventas’s status as a REIT and the adverse consequences (including the possible loss of Ventas’s status as a REIT) that would result if Ventas is not able to comply; (k) the risk of changes in healthcare law or regulation or in tax laws, guidance and interpretations, particularly as applied to REITs, that could adversely affect Ventas or Ventas’s tenants, borrowers or managers; (l) increases in Ventas’s borrowing costs as a result of becoming more leveraged or as a result of changes in interest rates and phasing out of LIBOR rates; (m) Ventas’s reliance on third parties to operate a majority of Ventas’s assets and Ventas’s limited control and influence over such operations and results; (n) Ventas’s dependency on a limited number of tenants and managers for a significant portion of Ventas’s revenues and operating income; (o) the adequacy of insurance coverage provided by Ventas’s policies and policies maintained by Ventas’s tenants, managers or other counterparties; (p) the occurrence of cyber incidents that could disrupt Ventas’s operations, result in the loss of confidential information or damage Ventas’s business relationships and reputation; (q) the impact of merger, acquisition and investment activity in the healthcare industry or otherwise affecting Ventas’s tenants, borrowers or managers; and (r) the risk of catastrophic or extreme weather and other natural events and the physical effects of climate change.

Contact

Sarah Whitford

(877) 4-VENTAS

XML

Document and Entity Information	Sep. 21, 2021
Cover [Abstract]
Amendment Flag	false
Entity Central Index Key	0001610114
Current Fiscal Year End Date	--12-31
Document Type	8-K
Document Period End Date	Sep. 21, 2021
Entity Registrant Name	New Senior Investment Group Inc.
Entity Incorporation State Country Code	DE
Entity File Number	001-36499
Entity Tax Identification Number	80-0912734
Entity Address, Address Line One	55 West 46th Street
Entity Address, Address Line Two	Suite 2204
Entity Address, City or Town	New York
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	10036
City Area Code	646
Local Phone Number	822-3700
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Pre Commencement Tender Offer	false
Pre Commencement Issuer Tender Offer	false
Security 12b Title	Common stock, $0.01 par value per share
Trading Symbol	SNR
Security Exchange Name	NYSE
Entity Emerging Growth Company	false