Exhibit 3.2
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CERTIFICATE OF INCORPORATION
OF
SANTA ANITA OPERATING COMPANY
FIRST: Name. The name of the Corporation is Santa Anita Operating
Company.
SECOND: Registered Office. The address of its registered office in the
State of Delaware is No. 100 West 10th Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD: Purposes. The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware and to do all
things and exercise all powers, rights and privileges which a business
corporation may now or hereafter be organized or authorized to do or to
exercise under the laws of the State of Delaware.
FOURTH: Capitalization. The total number of shares of all classes of stock
which the Corporation shall have authority to issue is 13,000,000, of which
10,000,000 shares of the par value of $.10 each are to be of a class designated
Common Stock and 3,000,000 of the par value of $.10 each are to be of a class
designated Preferred Stock.
The shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors of the Corporation is hereby authorized to
fix or alter the dividend rights, dividend rate, conversion rights, voting
rights, rights and terms of redemption (including sinking fund provisions), the
redemption price or prices, and the liquidation preferences of any wholly
unissued series of Preferred Stock and the number of shares constituting any
such series and the designation thereof, or all or any of them; and to increase
or decrease the number of shares of any series subsequent to the issue of shares
of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any designated series shall be
decreased, shares in the amount of the decrease shall resume the status of
authorized but undesignated shares of Preferred Stock.
FIFTH: Incorporator. The name and mailing address of the incorporator is
as follows:
Name Mailing Address
---- ---------------
Royce B. McKinley Santa Anita Consolidated, Inc.
One Wilshire Building
Los Angeles, California 90017
SIXTH. By-laws. The original by-laws of the Corporation shall be adopted
by the incorporator. Thereafter, in furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is expressly authorized,
without stockholder approval, to make, alter or repeal the by-laws of the
Corporation.
SEVENTH. Right to Amend Certificate of Incorporation. The Corporation
reserves the right to amend, alter, change or repeal any provision contained in
this certificate of incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject
to this reservation.
EIGHTH. Cumulative Voting.
(a) Every stockholder complying with subdivision (b) hereof and
entitled to vote at any election of directors may cumulate such
stockholder's votes and give one candidate a number of votes equal to the
number of directors to be elected multiplied by the number of votes to
which the stockholder's shares are normally entitled, or distribute the
stockholder's votes on the same principle among as many candidates as the
stockholder thinks fit.
(b) No stockholder shall be entitled to cumulate votes (i.e., cast for
any candidate a number of votes greater than the number of votes which such
stockholder normally is entitled to cast) unless such candidate or
candidates' names have been placed in nomination prior to the voting and
the stockholder has given notice at the meeting prior to the voting of the
stockholder's intention to cumulate the stockholder's votes. If any one
stockholder has given such notice, all stockholders may cumulate their
votes for candidates in nomination.
(c) In any election of directors, the candidates receiving the highest
number of votes of the shares entitled to be voted for them up to the
number of directors to be elected by such shares are elected.
THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, does make this certificate, hereby declaring and certifying
that this is his act and deed and the facts herein stated are true and
accordingly has hereunto set his hand this 16th day of August, 1979.
By /s/ ROYCE B. MCKINLEY
----------------------
Royce B. McKinley
CITY OF LOS ANGELES
STATE OF CALIFORNIA SS.
BE IT REMEMBERED, that on this 16th day of August, 1979, personally came
before me Huldah C. Withers, a Notary Public in and for the State of California,
Royce B. McKinley, the party to the foregoing Certificate of Incorporation,
known to me personally to be such, and acknowledged the said Certificate to be
his act and deed and that the facts stated therein are true.
GIVEN under my hand and seal of office the day and year aforesaid.
/s/ HULDAH C. WITHERS
---------------------
Notary Public
[SEAL]
- ---------------------------------------
[GREAT SEAL OF THE STATE OF CALIFORNIA]
OFFICIAL SEAL
HULDAH C. WITHERS
NOTARY PUBLIC - CALIFORNIA
LOS ANGELES COUNTY
My comm. expires JUL 16, 1982
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CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
SANTA ANITA OPERATING COMPANY
We, the undersigned, being the duly elected President and Chief
Executive Officer and Secretary of Santa Anita Operating Company (the
"Company"), a corporation organized under the laws of the State of Delaware, to
hereby certify:
FIRST, that by unanimous written consent of the Board of Directors of
the Company acting without a meeting and effective as of April 15, 1981, the
Board approved a proposed amendment to the Certificate of Incorporation of the
Company by approving the following recitals and resolutions:
WHEREAS, Article FOURTH of this corporation's Certificate of
Incorporation currently authorizes the issuance of 10,000,000 shares of
this corporation's Common Stock, $.10 par value, and 3,000,000 shares of
this corporation's Preferred Stock, $.10 par value; and
WHEREAS, as of March 18, 1981, 5,629,192 shares of Common Stock
were issued and outstanding, 10,000 shares of Common Stock were reserved
for issuance pursuant to this corporation's Employee Stock Option Plan and
30,000 shares of Common Stock were reserved for issuance pursuant to
options granted under the Santa Anita Realty Enterprises, Inc. ("Realty")
Employee Stock Option Plan; and
WHEREAS, this Board of Directors deems it advisable and in the
best interests of this corporation to increase the authorized number of
shares of Common
1
Stock and Preferred Stock in order to have the flexibility to issue
additional shares when appropriate to strengthen the corporation.
NOW, THEREFORE, BE IT RESOLVED, that the proposed amendment to
this corporation's Certificate of Incorporation described under "Approval
of Amendment to Certificate of Incorporation" in the April 3, 1981 draft of
this corporation's proxy statement in connection with 1981 Annual Meeting
of Shareholders (the "Draft Proxy Statement") is hereby approved.
RESOLVED, FURTHER, that the officers of this corporation, and
each of them, are hereby authorized and directed to take whatever steps are
necessary to present the proposed amendment to shareholders for their
approval at the 1981 Annual Meeting of Shareholders.
RESOLVED, FURTHER, that if the shareholders approve the proposed
amendment, the officers of this corporation, and each of them, are hereby
authorized and directed to file with the Secretary of State of the State of
Delaware a certificate setting forth the amendment and certifying that it
has been duly adopted in accordance with Delaware Law.
SECOND: That the following is a true and correct excerpt from the
section entitled "Approval of Amendment to Certificate of Incorporation" in the
April 3, 1981 draft of the Company's proxy statement in connection with the 1981
Annual Meeting of Shareholders, which section was incorporated by reference into
the foregoing resolutions:
"As amended, the first paragraph of Article FOURTH of the
Company's Certificate of Incorporation would read as follows:
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'FOURTH: Capitalization. The total number of shares of all
classes of stock which the Corporation shall have authority to issue
is 26,000,000, of which 20,000,000 shares of the par value of $.10
each are to be of a class designated Common Stock and 6,000,000 of the
par value of $.10 each are to be of a class designated Preferred
Stock.'
The remaining paragraph of Article FOURTH would be unchanged."
THIRD: That at the Annual Meeting of Shareholders held May 28, 1981,
and pursuant to notice duly given, the holders of a majority of the outstanding
shares of the Company's Common Stock voted in favor of the proposed amendment.
FOURTH: That this certificate is filed pursuant to Section 242 of the
Delaware General Corporation Law, as amended.
Executed this 29 day of May, 1981.
SANTA ANITA OPERATING COMPANY
By /s/ ROBERT P. STRUB
---------------------
Robert P. Strub
President and Chief
Executive Officer
ATTEST:
/s/ ALEXANDER W. INGLE
- ----------------------
Alexander W. Ingle,
Secretary
3
STATE OF CALIFORNIA )
) SS.
COUNTY OF LOS ANGELES )
On this 29th day of May 1981, personally appeared before me Robert P.
----
Strub and Alexander W. Ingle, known to me to be President and Chief Executive
Officer and Secretary, respectively, of Santa Anita Operating Company, a
Delaware corporation, and executed the within Instrument on behalf of the
corporation therein named.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ SUSIE S. NAVARRO
-----------------------------------
Notary Public in and for said State
[SEAL]
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[GREAT SEAL OF THE STATE OF CALIFORNIA]
OFFICIAL SEAL
SUSIE S. NAVARRO
NOTARY PUBLIC - CALIFORNIA
PRINCIPAL OFFICE IN
LOS ANGELES COUNTY
My Commission Expires June 1, 1984
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CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
OF
SANTA ANITA OPERATING COMPANY
We, the undersigned, being the duly elected President and Chief
Executive Officer and Secretary of Santa Anita Operating Company (the
"Company"), a corporation organized under the laws of the State of Delaware, do
hereby certify:
FIRST: That by unanimous vote of the Board of Directors of the
Company at a special meeting held on March 17, 1986, the Board approved the
amendment of the Certificate of Incorporation of the Company by the addition of
Articles Ninth, Tenth and Eleventh. The Board approved the following amendments
to the Certificate of Incorporation of the Company:
NINTH:
Part 1. Vote Required for Certain Business Combinations
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1.1. Higher Vote for Certain Business Combinations. In addition to any
affirmative vote required by law or any other Article of this Certificate of
Incorporation, and except as otherwise expressly provided in Part 2 of this
Article Ninth:
(a) any merger or consolidation of the Corporation or any Subsidiary
with (i) any Interested Stockholder or (ii) any other corporation (whether
or not itself an Interested Stockholder) which is, or after such merger
or consolidation would be, an Affiliate or Associate of an Interested
Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder of any assets of the Corporation or any Subsidiary having an
aggregate Fair Market Value of $5,000,000 or more; or
(c) the issuance or transfer by the Corporation or any Subsidiary (in
one transaction or a series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an aggregate
Fair Market Value of $5,000,000 or more, other than the issuance of
securities by the Corporation or any Subsidiary upon the conversion of
convertible securities of the Corporation or any Subsidiary into stock of
the Corporation or any Subsidiary; or
(d) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder; or
(e) any reclassification of securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the Corporation or any Subsidiary
which is directly or indirectly owned by any Interested Stockholder or any
Affiliate or Associate of any Interested Stockholder;
shall require the affirmative vote of the holders of at least (a) 80% of the
combined voting power of the then outstanding shares of stock of all classes
and series of the Corporation entitled to vote in the election of directors (the
"Voting Stock"), and (b) a majority of the combined voting power of the then
outstanding shares of Voting Stock held by persons who are Disinterested
Stockholders, provided, however, that the majority vote requirement of this
----------
clause (b) shall not be applicable if the Business Combination is approved by
the affirmative vote of the holders of not less than 90% of
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combined voting power of the then outstanding shares of Voting Stock. The
foregoing affirmative vote requirements are hereinafter referred to as the
"Special Vote Requirement." The Special Vote Requirement shall be applicable
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or in any agreement with any national
securities exchange or otherwise.
1.2. Definition of "Business Combination." The term "Business
Combination" as used in this Article Ninth shall mean any transaction which is
referred to in any one or more of clauses (a) through (e) of Section 1.1.
Part 2. When Special Vote Requirement Is Not Applicable
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The provisions of Part 1 of this Article Ninth shall not be applicable
to any particular Business Combination, and such Business Combination shall
require only such affirmative vote as is required by law and any other Article
of this Certificate of Incorporation, if all of the conditions specified in
either of the following Sections 2.1 and 2.2 are met:
2.1. Approval by Continuing Directors. The Business Combination shall
have been approved by a majority of the Continuing Directors.
2.2. Price and Procedural Requirements. All of the following
conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market Value, as of
the date of the consummation of the Business Combination, of consideration
other than cash to be received per share by holders of Common Stock in such
Business Combination shall be at least equal to the higher of (i) the
highest price paid for any share of Common Stock by any person who is an
Interested Stockholder within the two-year period immediately prior to the
time of the first public announcement of the proposed Business Combination
(the "Announcement Date") or in the transaction in which such person became
an Interested Stockholder, whichever price is the higher or (ii) the Fair
Market Value per share of the Corporation's Common Stock on the
Announcement Date or on the date on which the Interested Stockholder became
an Interested Stockholder (the "Determination Date"), whichever is higher.
The price paid for any share of Common Stock shall be the amount of cash
plus the Fair Market Value of any other consideration to be received
therefor, determined at the time of payment thereof.
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(b) The aggregate amount of the cash and the Fair Market Value, as of the
date of the consummation of the Business Combination, of consideration other
than cash to be received in such Business Combination by holders of securities
of the Corporation other than Common Stock shall be at least equal to the higher
of (i) if applicable, the highest preferential amount to which the holders of
such securities are entitled in the event of any voluntary liquidation,
dissolution or winding up of the Corporation, (ii) the highest price paid for
any of such securities by any person who is an Interested Stockholder within the
two-year period immediately prior to the Announcement Date or in the transaction
in which such person became an Interested Stockholder, whichever price is
higher, (iii) the Fair Market Value of such securities on the Announcement Date
or the Determination Date, whichever is higher, or (iv) if such securities are
convertible into or exchangeable for shares of Common Stock, the amount per
share of such Common Stock determined pursuant to the foregoing paragraph (a)
reduced by any amount payable by the holders of such securities in accordance
with the terms of such securities, per share, upon such conversion or exchange,
multiplied by the total number of shares of Common Stock into which or for which
such securities are convertible or exchangeable.
(c) The consideration to be received by holders of a particular class of
outstanding Voting Stock (including Common Stock) shall be in cash or in the
same forms the Interested Stockholder has previously paid for shares of such
class of Voting Stock. If the Interested Stockholder has paid for shares of any
class of Voting Stock with varying forms of consideration, the form of
consideration for such class of Voting Stock shall be either cash or the form of
consideration used to acquire the largest number of shares of such class of
Voting Stock previously acquired by it.
(d) After such Interested Stockholder has become an Interested Stockholder
and prior to the consummation of such Business Combination: (i) there shall have
been (1) no reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any subdivision of the Common Stock), except as
approved by a majority of the Continuing Directors, and (2) an increase in such
annual rate of dividends necessary to reflect any reclassification (including
any reverse stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of outstanding shares of
the Common Stock, unless the failure so to increase such annual rate is approved
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by a majority of the Continuing Directors; and (ii) such Interested
Stockholder shall have not become the beneficial owner of any additional
shares of Voting Stock except as part of the transaction which results in
such Interested Stockholder becoming an Interested Stockholder.
(e) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a stockholder),
of any loans, advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the Corporation,
whether in anticipation of or in connection with such Business Combination
or otherwise.
(f) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange
Act of 1934 and the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall be mailed to all
stockholders of the Corporation at least 30 days prior to the consummation
of such Business Combination (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or subsequent
provisions).
Part 3. Certain Definitions
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For the purposes of this Article Ninth:
3.1. A "person" shall mean any individual, firm, corporation,
partnership, trust or other entity.
3.2. "Interested Stockholder" shall mean any person (other than the
Corporation or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of more than 10%
of the combined voting power of the then outstanding Voting Stock; or
(b) is an Affiliate of the Corporation and at any time within the two-
year period immediately prior to the date in question was the beneficial
owner, directly or indirectly, of 10% or more of the combined voting power
of the then outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period immediately
prior to the date
5
in question beneficially owned by any Interested Stockholder, if such
assignment or succession shall have occurred in the course of a transaction
or series of transactions not involving a public offering within the
meaning of the Securities Act of 1933.
3.3. A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates has (i)
the right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote or to direct
the vote pursuant to any agreement, arrangement or understanding; or
(c) which are beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Voting Stock.
3.4. For the purposes of determining whether a person is an Interested
Stockholder pursuant to Section 3.2, the number of shares of Voting Stock deemed
to be outstanding shal1 include shares deemed owned through application of
Section 3.3 but shall not include any other shares of Voting Stock which may be
issuable to other persons pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
3.5. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as in effect on January 1, 1984.
3.6. "Subsidiary" means any corporation of which more than a majority
of any class of equity security is owned, directly or indirectly, by the
Corporation; provided, however, that for purposes of the definition of
Interested Stockholder set forth in Section 3.2, the term "Subsidiary" shall
mean only a corporation of which a majority of each class of equity security is
owned by the Corporation, by a Subsidiary, or by the Corporation and one or more
Subsidiaries.
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3.7. "Continuing Director" means any member of the Board of Directors
of the Corporation who is unaffiliated with, and not a nominee of, the
Interested Stockholder and was a member of the Board of Directors prior to the
time that the Interested Stockholder became an Interested Stockholder and any
successor of a Continuing Director who is unaffiliated with, and not a nominee
of, the Interested Stockholder and who is recommended to succeed a Continuing
Director by a majority of Continuing Directors then on the Board of Directors.
3.8. "Disinterested Stockholder" means a holder of Voting Stock who is
not an Interested Stockholder or an Affiliate or Associate of an Interested
Stockholder and whose shares are not deemed owned by an Interested Stockholder
through application of Section 3.3.
3.9. "Fair Market Value" means: (a) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered under
the Securities Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid quotation with
respect to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such quotations are
available, the Fair Market Value on the date in question of a share of such
stock as determined by a majority of the Continuing Directors in good faith; and
(b) in the case of stock of any class of securities not traded on any securities
exchange or in the over-the-counter market or in the case of property other than
cash or stock, the Fair Market Value of such securities or property on the date
in question as determined by a majority of the Continuing Directors in good
faith. If the stock is paired for purposes of trading with that of any other
corporation, the Fair Market Value of the paired stock shall be determined
pursuant to the pairing or other agreement which provides for the determination
of the relative values of the stock of the Corporation and the stock of such
other corporation, after determining the Fair Market Value of the paired stock
as set forth above.
3.10. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration to be received" as used in
Sections 2.2(a), (b) and (c) shall include the shares of Common Stock and/or the
shares of any other class of outstanding Voting Stock retained by the holders of
such shares.
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Part 4. Directors' Duty to Determine Certain Facts
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The majority of the Continuing Directors of the Corporation shall have
the power and duty to determine for the purpose of this Article Ninth, on the
basis of information known to them after reasonable inquiry, all facts
necessary to determine the applicability of the various provisions of this
Article Ninth, including (A) whether a person is an Interested Stockholder, (B)
the number of shares of Voting Stock beneficially owned by any person, (C)
whether a person is an Affiliate or Associate of another, (D) whether the
requirements of Section 2.2 have been met with respect to any Business
Combination, and (E) whether the assets which are the subject of any Business
Combination have, or the consideration to be received for the issuance or
transfer of securities by the Corporation or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $5,000,000 or more; and the
good faith determination of a majority of the Continuing Directors shall be
conclusive and binding for all purposes of this Article Ninth.
Part 5. No Effect on Fiduciary Obligations of Interested Stockholders
- ---------------------------------------------------------------------
Nothing contained in this Article Ninth shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
Part 6. Amendment, Repeal, Inconsistent Provisions
- --------------------------------------------------
Notwithstanding any other provisions of law or of this Certificate of
Incorporation or the by-laws of the Corporation which might otherwise permit a
lesser vote or no vote, but in addition to any affirmative vote of the holders
of any particular class or series of securities which may be required by law or
by this Certificate of Incorporation, any proposal to amend or repeal, or adopt
any provisions inconsistent with, this Article Ninth of this Certificate of
Incorporation shall require for approval the affirmative vote of at least (a)
80% of the combined voting power of the then outstanding shares of Voting Stock
and (b) a majority of the combined voting power of the then outstanding shares
of Voting Stock held by persons who are Disinterested Stockholders, provided
that the majority vote requirement of this clause (b) shall not be applicable if
the proposal is approved by the affirmative vote of not less than 90% of the
combined voting power of the then outstanding shares of Voting Stock.
TENTH:
(a) The number of directors shall be as provided in the by-laws. The
Board of Directors shall be divided into
8
three classes, designated Class I, Class II and Class III, such classes to be as
nearly equal in number as possible and to have the number provided in the by-
laws. At the annual meeting of stockholders in 1986, directors of Class I shall
be elected to hold office for a term expiring at the next succeeding annual
meeting, directors of Class II shall be elected to hold office for a term
expiring at the second succeeding annual meeting, and directors of Class III
shall be elected to hold office for a term expiring at the third succeeding
annual meeting. Thereafter at each annual meeting of stockholders, directors
shall be chosen for a term of three years to succeed those whose terms then
expire and shall hold office until the third following annual meeting of
stockholders and until the election of their respective successors. Any vacancy
on the Board of Directors, whether arising through death, resignation or removal
of a director or through an increase in the number of directors of any class,
shall be filled by a majority vote of all the remaining directors. The term of
office of any director elected to fill such a vacancy shall expire at the
expiration of the term of office of directors of the class in which the vacancy
occurred. Notwithstanding any other provision of this Article, and except as
otherwise required by law, whenever the holders of any one or more series of
Preferred Stock or other securities of the Corporation shall have the right,
voting separately as a class, to elect one or more directors of the Corporation,
the term of office, the filling of vacancies and other features of such
directorships shall be governed by the terms of this Certificate of
Incorporation applicable thereto, and unless the terms of this Certificate of
Incorporation expressly provide otherwise, such directorships shall be in
addition to the number of directors provided in the by-laws and such directors
shall not be classified pursuant to this Article.
(b) Any action required or permitted to be taken by holders of stock
of the Corporation must be taken at a meeting of such holders and may not be
taken by consent in writing. The by-laws of the Corporation may be amended by
the stockholders only by the affirmative vote of at least 80% of the voting
power of the Corporation. Notwithstanding any other provision of law or of this
Certificate of Incorporation or the by-laws of the Corporation which might
otherwise permit a lesser vote or no vote, but in addition to any affirmative
vote of the holders of any particular class or series of securities which may be
required by law or by this Certificate of Incorporation, any proposal to amend
or repeal, or adopt any provisions inconsistent with, this Article Tenth shall
require for approval the affirmative vote of at least 80% of the voting power of
the Corporation.
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ELEVENTH:
The Board of Directors shall base the response of this Corporation to
any proposed Business Combination on the Board of Directors' evaluation of
what is in the best interest of this Corporation. In evaluating what is in the
best interest of this Corporation, the Board of Directors shall consider:
(a) The best interest of the shareholders. For this purpose, the Board
shall consider among other factors, not only the consideration offered in
the proposed Business Combination in relation to the then current market
price of this Corporation's stock, but also in relation to the then current
value of this Corporation in a freely negotiated transaction and in
relation to the Board of Directors' then estimate of the future value of
this Corporation as an independent entity; and
(b) Such other factors as the Board of Directors determines to be
relevant, including, among other factors, the social, legal and economic
effects on the communities in which this Corporation and its subsidiaries
operate and are located.
SECOND: That the above-referenced amendments to the Certificate of
Incorporation were set forth in the Company's proxy statement dated March 26,
1986 in connection with the Company's Annual Meeting of Shareholders.
THIRD: That at the Annual Meeting of Shareholders held May 13,
1986, and pursuant to notice duly given, the holders of a majority of the
outstanding shares of the Company's Common Stock voted in favor of the above-
referenced amendments.
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FOURTH: That this certificate is filed pursuant to Section 242
of the Delaware Corporation Law, as amended.
Executed this 13th day of May, 1986.
SANTA ANITA OPERATING COMPANY
By /s/ ROBERT P. STRUB
-------------------------------------
Robert P. Strub
President and Chief Executive Officer
ATTEST:
/s/ ALEXANDER W. INGLE
- ----------------------
Alexander W. Ingle
Secretary
11
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION
OF
SANTA ANITA OPERATING COMPANY
We, the undersigned, being the duly elected President and Chief
Executive Officer and Secretary of Santa Anita Operating Company (the
"Company"), a corporation organized under the laws of the State of Delaware, do
hereby certify:
FIRST: That by unanimous vote of the Board of Directors of the
Company at a regular, quarterly meeting held on February 26, 1987, the Board
approved an amendment of the Certificate of Incorporation of the Company by the
addition of Article Twelfth thereto, which reads as follows:
TWELFTH:
To the fullest extent permitted by the General Corporation Law of the State
of Delaware as the same exists or may hereafter be amended, a director of the
corporation shall not be liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as director.
Any repeal or modification of this Article shall not result in any
liability for a director with respect to any action or omission occurring prior
to such repeal or modification.
1
SECOND: That the above-referenced amendment to the Certificate of
Incorporation was set forth in the Company's proxy statement dated March 31,
1987 in connection with the Company's Annual Meeting of Shareholders.
THIRD: That at the Annual Meeting of Shareholders held May 19,
1987, and pursuant to notice duly given, the holders of a majority of the
outstanding shares of the Company's Common Stock voted in favor of the above-
referenced amendment.
FOURTH: That this certificate is filed pursuant to Section 242 of
the Delaware Corporation Law, as amended.
Executed this 31st day of May, 1987.
SANTA ANITA OPERATING COMPANY
By /s/ ROBERT P. STRUB
-------------------------------------
Robert P. Strub
President and Chief Executive Officer
ATTEST:
/s/ ALEXANDER W. INGLE
- ----------------------
Alexander W. Ingle
Secretary
2
CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
SANTA ANITA OPERATING COMPANY
We, the undersigned, being the duly elected President and Chief
Executive Officer, and Vice President and Secretary of Santa Anita Operating
Company (the "Company"), a corporation organized and existing under the laws of
the State of Delaware, do hereby certify:
FIRST, That by unanimous written consent of the Board of Directors of
the Company acting without a meeting and effective as of March 9, 1990, the
Board of Directors approved a proposed amendment of the Certificate of
Incorporation of the Company, declaring said amendment to be advisable and
authorizing the proposed amendment to be presented to the stockholders of the
Company at the next annual meeting of stockholders for their consideration. The
resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of the Corporation be
amended in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware by amending the first paragraph of
Article FOURTH thereof to read as follows:
"FOURTH: Capitalization: The total number of shares of all
classes of stock which the Corporation shall have the authority to
issue is 46,000,000, of which 40,000,000 shares of the par value of
$0.10 each are to be of a class designated Common Stock and 6,000,000
of the par value of $0.10 each are to be of a class designated
Preferred Stock."
SECOND: That at the Annual Meeting of Shareholders held May 3, 1990, and
pursuant to notice duly given, the holders of a majority of the outstanding
shares of the Company's Common Stock voted in favor of the above-referenced
amendment.
THIRD: That the above-referenced amendment was duly adopted in accordance
with the provisions of Section 242 of the Delaware General Corporation Law, as
amended.
IN WITNESS WHEREOF, this Certificate of Amendment of Incorporation has
been executed on behalf of Santa Anita Operating Company by its duly authorized
officers this 3rd day of May, 1990.
---
SANTA ANITA OPERATING COMPANY
By /s/ ROBERT P. STRUB
---------------------
Robert P. Strub
President and Chief
Executive Officer
ATTEST:
/s/ ALEXANDER W. INGLE
- ----------------------
Alexander W. Ingle
Vice President and Secretary
CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
SANTA ANITA OPERATING COMPANY
We, the undersigned, being the duly elected President and Chief Executive
Officer and Secretary and Treasurer of Santa Anita Operating Company (the
"Company"), a corporation organized and existing under the laws of the State of
Delaware, do hereby certify:
FIRST, That at a meeting held on February 11, 1993, the Board of Directors
of the Company approved a proposed amendment of the Certificate of Incorporation
of the Company, declaring said amendment to be advisable and authorizing the
proposed amendment to be presented to the stockholders of the Company at the
next annual meeting of stockholders for their consideration. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Certificate of Incorporation of the Corporation be
amended in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware by amending the first paragraph of
Article FOURTH thereof to read as follows:
"FOURTH: Capitalization: The total number of shares of all classes of stock
which the Corporation shall have the authority to issue is 25,000,000 of which
19,000,000 shares of the par value of $0.10 each are to be of a class designated
Common Stock and 6,000,000 of the par value of $0.10 each are to be of a class
designated Preferred Stock."
SECOND, That at the Annual Meeting of Shareholders held May 4, 1993, and
pursuant to notice duly given, the holders of a majority of the outstanding
shares of the Company's Common Stock voted in favor of the above-referenced
amendment.
THIRD, That the above-referenced amendment was duly adopted in accordance
with the provisions of Section 242 of the Delaware General Corporation Law, as
amended.
IN WITNESS WHEREOF, this Certificate of Amendment of Certificate of
Incorporation has been executed on behalf of Santa Anita Operating Company by
its duly authorized officers this first day of June, 1993.
SANTA ANITA OPERATING COMPANY
By /s/ STEPHEN F. KELLER
-----------------------------
Stephen F. Keller
President and Chief
Executive Officer
ATTEST:
/s/ ALEXANDER W. INGLE
- -------------------------
Alexander W. Ingle
Secretary and Treasurer