Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
INTERNATIONAL THOROUGHBRED BREEDERS, INC.
International Thoroughbred Breeders, Inc., a corporation organized and
existing under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is INTERNATIONAL THOROUGHBRED BREEDERS, INC.
("the Corporation").
2. The Corporation filed its original Certificate of Incorporation with the
Secretary of State of the State of Delaware on October 31, 1980. The Corporation
subsequently filed a Certificate of Amendment on March 16, 1981, a Certificate
of Amendment on July 25, 1983, a Certificate of Amendment on February 20, 1986,
a Certificate of Amendment on December 15, 1986, a Certificate of Ownership on
January 9, 1987, a Certificate of Amendment on March 12, 1992, a Certificate of
Ownership on August 26, 1997, and a Certificate of Designation on January 21,
2000 (together, the "Current Certificate of Incorporation").
3. This Restated Certificate of Incorporation was duly adopted by the Board
of Directors of the Corporation in accordance with Section 245 of the General
Corporation Law of the State of Delaware.
4. This Restated Certificate of Incorporation only restates and integrates
and does not further amend the provisions of the Corporation's Certificate of
Incorporation as heretofore amended or supplemented, and there is no discrepancy
between those provisions and the provisions of this Restated Certificate of
Incorporation.
5. The text of the Current Certificate of Incorporation is hereby restated
in its entirety to read as follows:
FIRST: The name of the corporation is International Thoroughbred
Breeders, Inc.
SECOND: The registered office of the corporation is to be located at
1209 Orange Street Street, in the City of Wilmington, in the County of New
Castle, in the State of Delaware. The name of its registered agent at that
address is The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware.
Without limiting in any manner the scope and generality of the
foregoing, it is hereby provided that the corporation shall have the following
purposes, objects and powers:
To purchase, own, maintain, breed, foal, lease and sell, at wholesale
and at retail, by itself and through subsidiaries, thoroughbred,
standardbred and any other types of horses as well as interests in and
services of such animals; and to own and operate farms for the purpose
of breeding and maintaining such animals.
To design, produce, manufacture, market and sell at wholesale and at
retail, by itself and through subsidiaries, machinery for the
manufacture of and/or products of every nature and description.
To purchase, receive, take by grant, gift, devise, bequest or otherwise,
lease or otherwise acquire, own, hold, improve, employ, use and
otherwise deal in and with real or personal property, or any interest
therein, wherever situated, and to sell, convey, lease, exchange,
transfer or otherwise dispose of, or mortgage or pledge, all or any of
the corporation's property and assets, or any interest therein, wherever
situated.
To build, construct, purchase, exchange, lease, hire or otherwise
acquire, to hold, own, use, occupy, operate, improve, alter, maintain,
develop, repair, mortgage, sell, exchange, divide, lease and otherwise
encumber and to dispose of, and to deal and trade in any and all
buildings, structures, factories, homes, mobile and modular buildings
and parks and interests therein and make improvements of every kind and
description, and to let offices, stores, shops, apartments, homes,
factories, or other space therein; to procure permits or licenses from
municipal or other authorities for the erection, maintenance, and
letting of buildings of every kind and description whatsoever located
and to do and perform every act required or permitted by law to be done
or performed in the erection, maintenance and operation of such
buildings, and generally to engage in the business of real estate, both
with respect to any property owned by the corporation and with respect
to any other real estate.
To purchase, obtain by contract or concession or otherwise acquire,
take, hold, own, develop, explore, exploit, improve, operate, lease,
enjoy, control, manage or otherwise turn to account, mortgage, pledge,
create liens upon, grant, sell, exchange, deal in, convey or otherwise
dispose of, any and all natural resources, lands, real estate, leases,
concessions, licenses, privileges, grants, rights, land patents,
deposits, wells, mines, quarries, locations, claims, easements,
leaseholds, tenements, hereditaments and interests of every description
and nature wheresoever located.
To own, operate, conduct and manage as principal or agent and generally
to carry on the business of operating apartment houses, hotels, motels,
inns, camps, resorts, theatres, amusements of all kinds, restaurants,
cafes, taverns, purveyors and caterers for public and private
consumption; owners and operators of garages and parking spaces for the
parking, sale,
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storing and repair of all kinds of vehicles, including motor vehicles
and dealers in supplies, accessories therefore.
To act as agent, broker, or attorney in fact, for others in purchasing,
selling, leasing and otherwise dealing in and with real property, or any
interest therein; to negotiate and consummate contracts and agreements
for the purpose of purchasing, acquiring, owning, using, improving,
selling, conveying, mortgaging, pledging, leasing, exchanging and
transferring real property, buildings, improvements, and any interests
therein; to act as agent for others in the loaning and borrowing of
money, secured by real and personal property: to engage in and carry on
a general real estate agency and brokerage business, and to engage in
and carry on a mortgage brokerage business.
To manufacture, purchase or otherwise acquire, invest in, own, mortgage,
pledge, sell, assign and transfer or otherwise dispose of, trade, deal
in and deal with goods, wages and merchandise and personal property of
every class and description.
To purchase, manufacture, produce, assemble, receive, lease or in any
manner acquire, hold, own, use, operate, install, maintain, service,
repair, process, alter, improve, import, export, sell, lease, assign,
transfer and generally to trade and deal in and with raw materials,
natural or manufactured articles or products, machinery, equipment,
devices, systems, parts, supplies, apparatus, goods, wares, merchandise
and personal property or every kind, nature or description, tangible or
intangible, used or capable of being used for any purpose whatsoever;
and to engage and participate in any mercantile, manufacturing or
trading business of any kind or character.
To improve, manage, develop, sell, assign, transfer, lease, mortgage,
pledge or otherwise dispose of or turn to account or deal with all or
any part of the property of the corporation and from time to time to
vary any investment or employment of capital of the corporation.
To acquire, by purchase or otherwise, turn to account, license the use
of, assign and deal with copyrights and intellectual and art properties,
importing, exporting, franchising, marketing, distributing, making,
manufacturing and generally dealing in or with respect to, any and all
kinds of written or oral matter, personal property and in any and all
equipment, machinery, plants, facilities, supplies and properties
(whether real, personal or mixed, improved or unimproved) in connection
with the foregoing.
To any extent now or hereafter authorized by law to conduct, manage and
carry on the business of rendering consulting and other general services
to
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all persons, firms, partnerships or corporations, associations and
institutions and to carry on said business in all of its respective
branches.
To acquire or issue franchises to own, operate and conduct
establishments performing all manner of services, including the
preparation or furnishing of food and personal property, and services,
and to provide and furnish financial assistance in connection with such
franchise.
To apply for, obtain, register and purchase, lease, franchise or
otherwise to acquire and to hold, own, use, develop, operate and
introduce and to sell, assign, franchise, grant licenses or territorial
rights in respect to, or otherwise to turn to account or dispose of, any
copyrights, trademarks, trade names, brands, labels, patent rights,
letters patent of the United States or of any other country or
government, inventions, improvements and processes, whether used in
connection with or secured under letters patent or otherwise.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of, mortgage or otherwise dispose of letters patent of the United States
or any foreign country, patent rights, licenses and privileges,
inventions, improvements and processes, copyrights, trademarks and trade
names, relating to or useful in connection with any business of this
corporation.
To acquire by purchase, subscription or otherwise, and to hold for
investment or otherwise and to use, sell, assign, transfer, mortgage,
pledge or otherwise deal with or dispose of stocks, bonds or any other
obligations or securities of any corporation or corporations; to merge
or consolidate with any corporation in such manner as may be permitted
by law; to aid in any manner any corporation whose stocks, bonds or
other obligations are held or in any manner guaranteed by this
corporation, or in which this corporation is in any way interested; and
to do any other acts or things for the presentation, protection,
improvement or enhancement of the value of any such stock, bonds or
other obligations; and while owner of any such stock, bonds or other
obligations to exercise all the rights, powers and privileges of
ownership thereof, and to exercise any and all voting powers thereon;
and to guarantee the payment of dividends upon any stock, the principal
or interest or both, of any bonds or other obligations and the
performance of any contracts.
To act as agent or representative of corporations, firms and individuals
and as such to develop and extend the business interests of firms,
corporations and individuals.
To provide services of every kind for business, commercial, financial,
manufacturing, amusement, entertainment and home use.
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To carry on a general investment and management advisory business
relating to investments and the operation of business, plants,
properties, real and personal property of every kind, in the United
States and foreign countries, subject to the applicable laws thereof.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake
or assume the whole or any part of the obligations or liabilities of any
person, firm, association or corporation.
To borrow money, and to make and issue notes, bonds, debentures,
obligations and evidences of indebtedness of all kinds, whether secured
by mortgage, pledge, or otherwise, without limit as to amount, and to
secure the same by mortgage, pledge or otherwise; and generally to make
and perform agreements and contracts of every kind and description,
including contracts of guaranty and suretyship.
To lend money for its corporate purposes, invest and reinvest its funds,
and take, hold and deal with real and personal property as security for
the payment of funds so loaned or invested.
To promote, finance and assist financially or otherwise, whether by
loan, subsidy or otherwise, any firm, corporation, company, association,
syndicate or other entity in whose business affairs this corporation
shall have any interest, and in connection therewith and to the extent
permitted by law, to guarantee the performance of any undertaking or
obligation or the payment of dividends on stock.
To borrow or raise moneys for any of the purposes of the corporation and
from time to time without limit as to amount, to draw, make, accept,
endorse, execute and issue promissory notes, drafts, bills and exchange,
warrants, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness, and to secure the payment of
any thereof and of the interest thereof by mortgage upon or pledge,
conveyance or assignment in trust of the whole or any part of the
property of the corporation, whether at the time owned or thereafter
acquired, and to sell, pledge or otherwise dispose of such bonds or
other obligations of the corporation for its corporate purposes.
To participate with others in any corporation, partnership, limited
partnership, joint venture, or other association of any kind, or in any
transaction, undertaking or arrangement which the participating
corporation would have power to conduct by itself, whether or not such
participation involves sharing or delegation of control with or to
others; and to be an incorporator, promoter or manager of other
corporations of any type or kind.
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To pay pensions and establish and carry out pension, profit sharing,
stock options, stock purchase, stock bonus, retirement, benefit,
incentive and commission plans, trusts and provisions for any or all of
its Directors, officers and employees, and for any or all of the
Directors, officers and employees of its subsidiaries; and to provide
insurance for its benefit on the life of any its Directors, officers or
employees, or on the life of any stockholders for the purpose of
acquiring at his death shares of its stock owned by such stockholder.
The business or purpose of the corporation is from time to time to do
any one or more of the acts and things hereinabove set forth, and it
shall have power to conduct and carry on its said business, or any part
thereof, and to have one of more offices, and to exercise any or all of
its corporate powers and rights, in the State of Delaware, and in the
various other states, territories, colonies and dependencies of the
United States, in the District of Columbia, and in all or any foreign
countries.
The enumeration herein of the objects and purposes of the corporation
shall be construed as powers as well as objects and purposes and shall
not be deemed to exclude by inference any powers, objects or purposes
which the corporation is empowered to exercise, whether expressly by
force of the laws of the State of Delaware now or hereafter in effect,
or impliedly by the reasonable construction of the said laws.
The business and purposes specified in the foregoing clauses shall
expect where otherwise expressed, be in no way limited or restricted by
reference to, or inference from, the terms of any other clause in this
certificate of incorporation, but the business and purposes specified in each of
the foregoing clauses of this article shall be regarded as independent business
purposes.
FOURTH: The aggregate number of shares which the corporation is
authorized to issue is Twenty Six Million (26,000,000), to consist of Five
Hundred Thousand (500,000) shares of Preferred Stock having a par value of $10
per share, Five Hundred Thousand (500,000) shares of Series A Convertible
Preferred Stock having a par value of $100 per share, and Twenty Five Million
(25,000,000) shares of Common Stock having a par value of $2.00 per share.
The designations, preferences, privileges and voting powers of each
class of stock of the corporation and the restrictions and qualifications
thereof shall be as follows:
A. PREFERRED STOCK
(1) Preferred Stock may be issued from time to time in one or
more series, each of such series to have such designations, relative rights,
preferences and limitations as are stated and expressed in this Article and in
the resolution or resolutions providing for the issue of such series adopted by
the Board of Directors as hereinafter provided.
(2) Authority is hereby expressly granted to the Board of
Directors, subject to the provisions of this Article, to establish and designate
one or more series of Preferred Stock and to fix the variations in the relative
rights, preferences and limitations of each series, including without
limitation:
(a) The number of shares to constitute such series and the
distinctive designations thereof;
(b) The dividend rate to which such shares shall be entitled and
the restrictions, limitations and conditions upon the payment of such
dividends, whether dividends shall be cumulative, the date or dates from
which dividends (if cumulative) shall accumulate and the dates on which
dividends (if declared) shall be payable;
(c) Whether or not the shares of such series shall be redeemable
and, if so, the terms, limitations and restrictions with respect to such
redemption, including without limitation the manner of selecting shares
for redemption if less than all shares are to be redeemed, and the
amount, if any, in addition to any accrued dividends thereon, which the
holders of shares of such series shall be entitled to receive upon the
redemption thereof, which amount may vary at different redemption dates
and may be different with respect to shares redeemed through the
operation of any purchase, retirement or sinking fund and with respect to
shares otherwise redeemed;
(d) The amount in addition to any accrued dividends thereon which
the holders of shares of such series shall be entitled to receive upon
the voluntary or involuntary liquidation, dissolution or winding up of
the corporation, which amount may vary at different dates and may vary
depending on whether such liquidation, dissolution or winding up is
voluntary or involuntary;
(e) Whether or not the shares of such series shall be subject to
the operation of a purchase, retirement or sinking fund and, if so, the
terms, limitations and restrictions with respect thereto, including
without limitation whether such purchase, retirement or sinking fund
shall be cumulative or non- cumulative, the extent to and the manner in
which such fund shall be applied to the purchase, retirement or
redemption of the shares of such series for retirement or to other
corporate purposes and the terms and provisions relative to the operation
thereof;
(f) Whether or not the shares of such series shall have conversion
privileges and, if so, prices or rates of conversion and the method, if
any, of adjusting the same;
(g) The voting powers, if any, of such series; and
(h) Any other relative rights, preferences and limitations thereof
as shall not be inconsistent with this Article.
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(3) All shares of any one series of Preferred Stock shall be
identical with each other in all respects, except that shares of any one series
issued at different times may differ as to the dates from which dividends
thereof shall be cumulative.
(4) The Board of Directors may provide that dividends on
Preferred Stock shall be declared and paid, or set apart for payment, and that
the corporation shall not be in default under any obligation to redeem shares of
Preferred Stock, before any dividends shall be declared and paid, or set apart
for payment, and before any other distributions shall be made, on any class or
classes of stock of the corporation ranking, junior to the Preferred Stock
(except dividends or other distributions in shares of such junior stock), or
before the corporation shall acquire any shares of such junior stock (except in
exchange for or out of the proceeds of sale of such junior stock).
(5) In the event of any liquidation, dissolution or winding up of
the corporation, whether voluntary or involuntary, before any payment or
distribution of the assets of the corporation shall be made to or set apart for
the holders of shares of any class or classes of stock of the corporation
ranking junior to the Preferred Stock, the holders of the shares of each series
of the Preferred Stock shall be entitled to receive payment of the amount per
share fixed by the Board of Directors for the particular series, plus an amount
equal to all dividends accrued thereon to the date of final distribution to such
holders; but they shall be entitled to no further payment. For the purposes of
this paragraph (5), the sale, conveyance, exchange or transfer (for cash, shares
of stock, securities or other consideration) of all or substantially all of the
property or assets of the corporation or a consolidation or merger of the
corporation with one or more corporations shall not be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary.
(6) So long as any of the Preferred Stock is outstanding, the
corporation
(a) will not, without the affirmative vote or written consent of
the holders of at least a majority of all the Preferred Stock at the time
outstanding, given in person or by proxy, either in writing or by
resolution adopted at a meeting called for the purpose, at which the
holders of the Preferred Stock, regardless of series, shall vote
separately as a class, i) create any other class or classes of stock
ranking prior to the Preferred Stock either as to dividends or
liquidation, or increase the authorized number of shares of any such
other class of stock, or ii) amend, alter or repeal any of the provisions
of this Article so as adversely to affect the preferences, rights or
powers of the Preferred Stock;
(b) will not, without the affirmative vote or written consent of
the holders of at least a majority of any adversely affected series of
the Preferred Stock at the time outstanding, given in person or by proxy,
either in writing or by resolution adopted at a meeting called the
purpose (the holders of such series of the Preferred Stock consenting or
voting, as the case may be, separately as a class), amend, alter or
repeal any of the provisions herein or in the resolution or resolutions
adopted by the Board of Directors providing for the issue of such series
so as adversely to affect the preferences, rights or powers of the
Preferred
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Stock of such series, provided, however, that any vote or consent
required by clause (ii) of the subparagraph (a) may be given and made
effective by the filing of an appropriate amendment of the corporation's
Certificate of Incorporation without obtaining the vote or consent of the
holders of the Common Stock of the corporation, the right to give such
vote or consent being expressly waived by holders of such Common Stock,
unless the action to be taken would adversely affect the preferences,
rights or powers of the Common Stock; and provided further that any vote
or consent required by subparagraph (a) above may be given and made
effective by the filing of an appropriate amendment of the corporation's
Certificate of Incorporation without obtaining the vote or consent of the
holders of any series of the Preferred Stock or the holders of the Common
Stock of the corporation, the right to give such vote or consent being
expressly waived by all holders of such other series of Preferred Stock
and Common Stock, unless the action to be taken would adversely affect
the preferences, rights or powers of such other series of Preferred Stock
or Common Stock, as the case may be; and
(c) The term "outstanding" when used in reference to shares of
stock, shall mean issued Shares, excluding shares held by the corporation
and shares called for redemption, funds for the redemption of which shall
have been set aside or deposited in trust.
(7) The shares of Preferred Stock may be issued by the
corporation from time to time for such consideration, not less than the par
value thereof, as may be fixed from time to time by the Board of Directors.
B. SERIES A CONVERTIBLE PREFERRED STOCK
(1) The number of shares of Series A Convertible Preferred Stock
which this corporation is authorized to issue is 500,000 shares, each of the par
value of $100.
(2) Holders of the Series A Convertible Preferred Stock are
entitled to share on a pro rata basis in cash dividends payable annually on
December 15, commencing December 15, 1983, to holders of record on the
immediately preceding November 30, out of "net race track earnings" for the year
ended the preceding June 30, if any (as hereinafter defined). "Net race track
earnings" shall mean the net after tax income for the applicable year of this
corporation's subsidiary which owns and operates the Garden State Race Track
facility in Cherry Hill, New Jersey, as determined by this corporation's
independent certified public accountants, disregarding carry-overs and the
effects of consolidation. Net before tax income will be arrived at after
deduction of an annual management fee due to this corporation for each year of
1/2 of 1% of the gross betting handle at such track for such year. The
applicable percentage of net race track earnings to be distributed to Series A
Convertible Preferred Stockholders shall be 50% of such earnings for each year
through June 30, 1987, and 25% of such earnings thereafter. Dividends are
non-cumulative. In computing net race track earnings or losses for a particular
year, no earnings or losses from other years will be carried over.
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(3) Holders of outstanding shares of Series A Convertible
Preferred Stock have no voting rights as stockholders of this corporation.
(4) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of this corporation, the holders of the Series A
Convertible Preferred Stock shall be entitled to receive $100 per share plus
accrued dividends, if any, prior to payment or distribution of its assets by
this corporation with respect to its Common Stock or any other class or classes
ranking junior to the Series A Convertible Preferred Stock.
(5) Each share of Series A Convertible Preferred Stock is
convertible after issuance at the option of the holder into shares of this
corporation's Common Stock initially at the rate of one share of Series A
Convertible Preferred Stock for one share of Common Stock until July 31, 1988,
and thereafter until July 31, 1993, at the rate of one-half share of Common
Stock. In the event a converting Series A Convertible Preferred Stockholder
would be entitled to a fractional share of Common Stock upon conversion, no
fractional share shall be issued but this corporation shall pay an amount equal
to the cash value of such fractional share otherwise issuable.
(6) This corporation at its option may, on not less than 30 nor
more than 60 days prior written notice, redeem outstanding shares of the Series
A Convertible Preferred Stock in whole or in part at any time after issuance and
prior to July 31, 1988, at a redemption price of $10 per share plus accrued
dividends. Holders of shares called for redemption shall have the right to
convert such shares up to a date 10 days prior to the effective redemption date.
(7) So long as any of the Series A Convertible Preferred Stock is
outstanding, this corporation
(a) will not, without the affirmative vote or written consent of
the holders of at least a majority of all of the Series A Convertible
Preferred Stock at the time outstanding, given in person or by proxy,
either in writing or by resolution adopted at a meeting called for the
purpose, at which the holders of the Series A Convertible Preferred Stock
shall vote separately as a class, i) create any other class or classes of
stock ranking prior to the Series A Convertible Preferred Stock either as
to dividends or liquidation, or increase the authorized number of shares
of any such other class of stock, or ii) amend, alter or repeal any of
the provisions of this Article so as adversely to affect the preferences,
rights or powers of the Series A Convertible Preferred Stock;
(b) will not, without the affirmative vote or written consent of
the holders of at least a majority of any adversely affected series of
the Series A Convertible Preferred Stock at the time outstanding, given
in person or by proxy, either in writing or by resolution adopted at a
meeting called for the purpose (the holders of such Series A Convertible
Preferred Stock consenting or voting, as the case may be, separately as a
class), amend, alter or repeal any of the provisions therein or in the
resolution or resolutions adopted by the Board of Directors providing for
the issue of such series as adversely to affect the preferences, rights
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or powers of the Series A Convertible Preferred Stock, provided, however,
that any vote or consent required by clause (ii) of subparagraph (a)
above may be given and made effective by the filing of an appropriate
amendment of this corporation's Certificate of Incorporation without
obtaining the vote or consent of the holders of the Common Stock of this
corporation, the right to give such vote or consent being expressly
waived by holders of such Common Stock, unless the action to be taken
would adversely affect the preferences, rights or powers of the Common
Stock; and provided further that any vote or consent required by
subparagraph (a) above may be given and made effective by the filing of
an appropriate amendment of this corporation's Certificate of
Incorporation without obtaining the vote or consent of the holders of any
other series of the Preferred Stock or the holders of the Common Stock of
this corporation, the right to give such vote or consent being expressly
waived by all holders of such other series of Preferred Stock and Common
Stock, unless the action to be taken would adversely affect the
preferences, rights or powers of such other series of Preferred Stock or
Common Stock, as the case may be; and
(c) the term "outstanding" when used in reference to shares of
stock, shall mean issued Shares, excluding shares held by this
corporation and shares called for redemption, funds for the redemption of
which shall have been set aside or deposited in trust.
(8) The shares of Series A Convertible Preferred Stock may be
issued by this corporation from time to time for such consideration, not less
than the par value thereof, as may be fixed from time to time by the Board of
Directors.
C. COMMON STOCK
Each share of Common Stock shall have one vote on all matters
including the election of directors. In the event of any liquidation,
dissolution or winding up of the corporation, the holders of the Common Stock
shall be entitled, after payment or provision for payment of the debts and other
liabilities of the corporation and subject to the prior rights of the Preferred
Stock and the Series A Convertible Preferred Stock, to share ratably in the
remaining net assets of the corporation.
FIFTH: [INTENTIONALLY OMITTED.]
SIXTH: The corporation is to have perpetual existence.
SEVENTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the corporation, and for further
definition, limitation and regulation of the powers of the corporation and of
its directors and stockholders:
(1) The number of directors of the corporation shall be such as from
time to time shall be fixed by, or in the manner provided in the bylaws.
Election of directors need not be by ballot unless the bylaws so provide.
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(2) The Board of Directors shall have power without the assent or vote
of the stockholders
(a) To make, alter, amend, change, add to or repeal the
Bylaws of the corporation, to fix and vary the amount to be reserved
for any proper purpose; to authorize and cause to be executed
mortgages and liens upon all or any part of the property of the
corporation; to determine the use and disposition of any surplus or
net profits; and to fix the times for the declaration and payment of
dividends.
(b) 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 of the corporation (other than the
stock ledger) or any of them, shall be open to the inspection of the
stockholders.
(3) The directors in their discretion may submit any contract or act for
approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such act
or contract, and any contract or act that shall be approved or be ratified by
the vote of the holders of a majority of the stock of the corporation which is
represented in person or by proxy at such meeting and entitled to vote threat
(provided that a lawful quorum of stockholders be there represented in person or
by proxy) shall be as valid and as binding upon the corporation and upon all the
stockholders as though it had been approved or ratified by every stockholder of
the corporation, whether or not the contract or act would otherwise be open to
legal attack because of directors' interest, or for any other reason.
(4) In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by
the corporation; subject, nevertheless, to the provisions of the statutes of
Delaware, of this certificate, and to any bylaws from time to time made by the
stockholders; provided, however, that no bylaws so made shall invalidate any
prior act of the directors which would have been valid if such bylaws had not
been made.
EIGHT: Meetings of stockholders may be held within or without the State
of Delaware, as the bylaws may provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the bylaws of the corporation.
NINTH: The corporation shall, to the full extent permitted by Section
145 of the Delaware General Corporation Law, as amended from time to time,
indemnify all persons whom it may indemnify pursuant thereto.
TENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them/or between this corporation
and its stockholders or any class of them, any court of equitable jurisdiction
within the State of Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under the provisions of
section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of
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any receiver or receivers appointed for this corporation under the provisions of
section 279 of Title 8 of the Delaware Code order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this corporation, as the case
may be, and also on this corporation.
ELEVENTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation in the
manner now or hereafter prescribed by law, and all rights and power conferred
herein on stockholders, directors and officers are subject to this reservation.
TWELVE: No director of the corporation shall have liability to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director occurring after December 15, 1986 (the date on which the
Certificate of Amendment amending the Certificate of Incorporation to include
this Article Twelfth was filed with the Secretary of State of Delaware);
provided, however, that the foregoing shall not limit or eliminate the liability
of a director i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, iii) under
Section 174 of the Delaware General Corporation Law or iv) for any transaction
from which the director derived an improper personal benefit.
IN WITNESS WHEREOF, the undersigned International Thoroughbred Breeders,
Inc. has caused this Restated Certificate of Incorporation to be signed by
Francis W. Murray, its President, on this 24th day of December, 2004.
/s/ Francis W. Murray
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Francis W. Murray
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