Exhibit 3.3
State of Delaware
Office of the Secretary of State
______________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "HOLLYWOOD PARK OPERATING COMPANY", FILED IN THIS OFFICE ON THE
TWENTY-SIXTH DAY OF OCTOBER, A.D. 1981, AT 10 O'CLOCK A.M.
/s/ Edward J. Freel
____________________________________
Edward J. Freel, Secretary of State
AUTHENTICATION:
DATE:
CERTIFICATE OF INCORPORATION
OF
HOLLYWOOD PARK OPERATING COMPANY
--------------------------------
ARTICLE I
---------
The name of the Corporation is: Hollywood Park Operating Company.
ARTICLE II
----------
The address of its registered office in the State of Delaware is 100 West
Tenth Street, Wilmington, County of New Castle. The name of its registered
agent is The Corporation Trust Company.
ARTICLE III
-----------
The nature of the business 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 the State of Delaware.
ARTICLE IV
----------
The amount of the total authorized capital stock of the corporation is
10,000 shares which are divided into two classes as follows:
2,500 shares of Preferred Stock having a par value of $1.00 per share;
and
7,500 shares of Common Stock having a par value of $0.10 per share.
The designations, voting powers, preferences and relative participating,
optional or other special rights, and qualifications, limitations or
restrictions of the above classes of stock are as follows:
A. Preferred Stock
---------------
The Board of Directors is expressly authorized, from time to time, (1)
to fix the number of shares of one or more series of Preferred Stock; (2)
to determine the designation of any such series; (3) to determine or alter,
without limitation or restriction, the rights, preferences, privileges and
restrictions granted to or imposed upon any wholly unissued series of
Preferred
Stock; and (4) within the limits or restrictions stated in any resolution
or resolutions of the Board of Directors originally fixing the number of
shares constituting any series, to increase or decrease (but not below the
number of shares then outstanding) the number of shares of any such series
subsequent to the issue of shares of that series.
B. Common Stock.
------------
(i) Subject to the preferential rights of the Preferred Stock,
the holders of the Common Stock shall be entitled to receive, to the
extent permitted by law, such dividends as may be declared from time
to time by the Board of Directors.
(ii) In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the corporation,
after distribution in full of the preferential amount to be
distributed to the holders of shares of the Preferred Stock, holders
of the Common Stock shall be entitled to receive all the remaining
assets of the corporation of whatever kind available for distribution
to stockholders, ratably in proportion to the number of shares of
Common Stock held by them respectively. A consolidation, merger or
reorganization of the corporation with any other corporation or
corporations, or a sale of all or substantially all of the assets of
the corporation, shall not be considered a dissolution, liquidation or
winding up of the corporation within the meaning of these provisions.
(iii) Except as may be otherwise required by law, each share of
Common Stock shall entitle the holder to one vote in respect of each
matter voted by the stockholders.
ARTICLE V
---------
Any and all right, title, interest and claim in or to any dividends
declared by the corporation, whether in cash, stock, or otherwise, which are
unclaimed by the stockholder entitled thereto for a period of six years after
the close of business on the payment date, shall be and is deemed to be
extinguished and abandoned; and such unclaimed dividends in the possession of
the corporation, its transfer agents or other agents or depositories shall at
such time become the absolute property of the corporation, free and clear of any
and all claims of any persons whatsoever.
ARTICLE VI
----------
In furtherance and not in limitation of the power conferred by statute, the
Board of Directors is expressly authorized to make, alter, mend or repeal the
by-laws of the corporation.
ARTICLE VII
-----------
Whenever a compromise or arrangement is proposed between this corporation
and its creditors or any class of them and/or between this corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of the 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.
ARTICLE VIII
------------
The corporation shall indemnify its officers and directors to the full
extent permitted by the Delaware General Corporation Law.
ARTICLE IX
----------
Elections of directors need not be by written ballot unless the by-laws of
the corporation so provide.
ARTICLE X
---------
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.
ARTICLE XI
----------
The name and mailing address of the incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
Candace K. Fullmer Suite 4100# 55 E. Monroe St.
Chicago, Illinois 60603
ARTICLE XII
-----------
The affirmative vote or written consent of the holders of 70% of all
outstanding shares of all classes of stock of the Corporation entitled to vote
thereon, considered for the purposes of this Article TWELFTH as one class, shall
be required:
(a) for the adoption of any agreement for the merger of the
Corporation with or into any other corporation or for the
consolidation of the Corporation with any other corporation;
(b) to authorize any sale, lease, transfer or exchange of all or
substantially all of the assets of the Corporation to any other person
(as hereinafter defined);
(c) to authorize the dissolution of the Corporation;
(d) to alter, amend or repeal this Article TWELFTH.
For the purposes of this Article TWELFTH, the term person shall mean any
corporation, partnership, association, or any other business entity, trust,
estate or individual.
This Article TWELFTH shall not apply to a merger if no vote of stockholders
of the Corporation is necessary under Delaware law to authorize it.
IN WITNESS WHEREOF, I have signed this Certificate of Incorporation this
23rd day of October, 1981.
/s/ Candace K. Fullmer
______________________________
Candace K. Fullmer
State of Delaware
Office of the Secretary of State
______________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "HOLLYWOOD PARK OPERATING COMPANY", FILED IN THIS OFFICE ON THE TWELFTH DAY
OF APRIL, A.D. 1982, AT 10 O'CLOCK A.M.
/s/ Edward J. Freel
___________________________________
Edward J. Freel, Secretary of State
AUTHENTICATION:
DATE:
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
HOLLYWOOD PARK OPERATING COMPANY
--------------------------------
Hollywood Park Operating Company, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the unanimous
written consent of its members, filed with the minutes of the Board, adopted
resolutions proposing the following amendment to the Certificate of
Incorporation of said Corporation:
RESOLVED, that the first sentence of Article IV of the Certificate of
Incorporation of the Corporation be amended to be and read as follows:
"The amount of the total authorized capital stock of the corporation is
4,750,000 shares which are divided into two classes as follows:
250,000 shares of Preferred Stock having a par value of $1.00 per
share; and
4,500,000 shares of Common Stock having a par value of $0.10 per
share."
FURTHER RESOLVED, that the aforesaid proposed amendment shall be submitted
for the approval of the holders of a majority of the outstanding shares of
capital stock of the Corporation, and, following such approval, that the
proper officers are hereby authorized and directed to execute and file such
documents and to take such other actions as they deem necessary or
appropriate to effectuate said amendment.
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given unanimous written consent to said amendment In
accordance with the provisions of
Section 228 of the General Corporation Law of the State of Delaware.
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 228 and 242 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, said Hollywood Park Operating Company has caused this
certificate to be signed by its Chairman and attested by its Secretary this 8th
day of April, 1982.
/s/ Vernon O. Underwood
______________________________
VERNON O. UNDERWOOD
Attest:
/s/ James E. Kenney
_________________________
JAMES E. KENNEY
State of Delaware
Office of the Secretary of State
______________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "HOLLYWOOD PARK OPERATING COMPANY", FILED IN THIS OFFICE ON THE NINTH DAY OF
DECEMBER, A.D. 1985, AT 9 O'CLOCK A.M.
/s/ Edward J. Freel
____________________________________
Edward J. Freel, Secretary of State
AUTHENTICATION:
DATE:
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
HOLLYWOOD PARK OPERATING COMPANY
--------------------------------
Marjorie L. Everett and James E. Kenney certify that:
1. They are the Chairman of the Board and Secretary, respectively, of
Hollywood Park Operating Company, a Delaware corporation.
2. The first sentence of Article IV of the Certificate of Incorporation
of this Corporation is amended to read as follows:
"The amount of the total authorized capital stock of the corporation
is 10,250,000 shares, which are divided into two classes as follows:
250,000 shares of Preferred Stock having a par value of $1.00 per
share; and
10,000,000 shares of Common Stock having a par value of $0.10 per
share."
3. The foregoing amendment of the Certificate of Incorporation has been
duly approved by the board of directors.
4. The foregoing amendment of the Certificate of Incorporation has been
duly approved by the required vote of shareholders in accordance with Section
242 of the General Corporation Law of the State of Delaware. The total number
of outstanding shares of the corporation is 3,834,382. The number of shares
voting in favor of the amendment was 2,625,977. The vote required was a
majority of the outstanding stock entitled to vote thereon.
We declare under penalty of perjury that the matters stated in this
certificate are true and correct of our own knowledge and that this Certificate
is signed on behalf of Hollywood Park Operating Company this 26th day of August,
1985.
/s/ Marjorie L. Everett
______________________________
MARJORIE L. EVERETT
Chairman of the Board
/s/ James E. Kenney
______________________________
JAMES E. KENNEY
Secretary
State of Delaware
Office of the Secretary of State
______________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF RENEWAL OF
"HOLLYWOOD PARK OPERATING COMPANY", FILED IN THIS OFFICE ON THE EIGHTH DAY OF
SEPTEMBER, A.D. 1986, AT 10 O'CLOCK A.M.
/s/ Edward J. Freel
____________________________________
Edward J. Freel, Secretary of State
AUTHENTICATION:
DATE:
CERTIFICATE
FOR RENEWAL AND REVIVAL OF CERTIFICATE OF INCORPORATION
Hollywood Park Operating Company, a corporation organized under the laws of
Delaware, The Certificate of Incorporation of which was filed in the office of
the Secretary of State on the 26th day of October, 1981, the Certificate of
Incorporation of which was voided for non-payment of taxes, now desires to
procure a restoration, renewal and revival of its Certificate of Incorporation,
and hereby certifies as follows:
1. The name of this corporation is Hollywood Park Operating Company.
2. Its registered office in the State of Delaware is located at
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle and the name of its registered agent at such address is The Corporation
Trust Company.
3. The date when the restoration, renewal, and revival of the Certificate
of Incorporation of this company is to commence is the 28th day of February A.D.
1986, same being prior to the date of the expiration of the Certificate of
Incorporation. This renewal and revival of the Certificate of Incorporation of
this corporation is to be perpetual.
4. This corporation was duly organized under the Laws of the State of
Delaware and carried on the business authorized by its Certificate of
Incorporation until the 1st
day of March A.D. 1986, at which time its Certificate of Incorporation became
inoperative and void for non-payment of taxes and this certificate for renewal
and revival is filed by authority of the duly elected directors of the
corporation is accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, said Hollywood Park Operating Company in compliance
with Section 312 of Title 8 of the Delaware Code has caused this certificate to
be signed by __________________ its last and acting _______________ President,
and attested by ____________________ its last and acting _____________________
Secretary, this 9th. day of July, 1986.
Hollywood Park Operating
Company
By /s/ Marjorie L. Everett
______________________________
Marjorie L. Everett
Last and Acting President
ATTEST:
By /s/ James E. Kenney
_________________________
James E. Kenney
Last and Acting Secretary
State of Delaware
Office of the Secretary of State
______________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "HOLLYWOOD PARK OPERATING COMPANY", FILED IN THIS OFFICE ON THE TWENTY-SIXTH
DAY OF OCTOBER, A.D. 1987, AT 10:35 O'CLOCK A.M.
/s/ Edward J. Freel
____________________________________
Edward J. Freel, Secretary of State
AUTHENTICATION:
DATE:
THIRD CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
HOLLYWOOD PARK OPERATING COMPANY
--------------------------------
Marjorie L. Everett and Warren B. Williamson certify that:
1. They are the Chairman of the Board and Secretary, respectively, of
Hollywood Park Operating Company, a Delaware corporation.
2. The Certificate of Incorporation of this Corporation is amended to add
a new Article XIII as follows:
"ARTICLE XIII
No director of the Company shall be personally liable to the Company
or its shareholders for monetary damages for breach of fiduciary duty by
such director for corporate actions as a director; provided, however, that
this Article XIII shall not eliminate or limit the liability of a director
to the extent provided by applicable law (1) for any breach of the
director's duty of loyalty to the Company or its shareholders, (2) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) under Section 174 of the General Corporation
Law of Delaware, or (4) for any transaction from which the director derived
an improper personal benefit. No amendment to repeal this Article XIII
shall apply to, or have any effect on, the liability or alleged liability
of any
director of the Company for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal."
3. The foregoing amendment of the Certificate of Incorporation has been
duly approved by the board of directors.
4. The foregoing amendment of the Certificate of Incorporation has been
duly approved by the required vote of its shareholders in accordance with
Section 242 of the General Corporation Law of the State of Delaware. The total
number of outstanding shares of the corporation is 3,824,383. The number of
shares voting in favor of the amendment was 2,417,504. The vote required was a
majority of the outstanding stock entitled to vote thereon.
We declare under penalty of perjury of the laws of the State of California
that the matters stated in this Certificate are true and correct of our own
knowledge and that this Certificate is signed on behalf of Hollywood Park
Operating Company this 2nd day of September, 1987.
/s/ Marjorie L. Everett
______________________________
MARJORIE L. EVERETT
Chairman of the Board
/s/ Warren B. Williamson
______________________________
WARREN B. WILLIAMSON
Secretary
State of Delaware
Office of the Secretary of State
______________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "HOLLYWOOD PARK OPERATING COMPANY", FILED IN THIS OFFICE ON THE
TWENTIETH DAY OF APRIL, A.D. 1988, AT 9 O'CLOCK A.M.
/s/ Edward J. Freel
____________________________________
Edward J. Freel, Secretary of State
AUTHENTICATION:
DATE:
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A PREFERRED STOCK
OF
HOLLYWOOD PARK OPERATING COMPANY
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Marjorie L. Everett, Chairman of the Board, and Donald Robbins,
Assistant Secretary, of Hollywood Park Operating Company, a corporation
organized and existing under the General Corporation Law of the State of
Delaware, in accordance with the provisions of Section 103 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation of the said Corporation, as amended, the said Board
of Directors on April 13, 1988, adopted the following resolution creating a
series of 50,000 shares of Preferred Stock designated as Series A Junior
Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of this Corporation in accordance with the provisions of its Certificate of
Incorporation, a series of Preferred Stock of the Corporation be and it hereby
is created, and that the designation and amount thereof and the voting powers,
preferences and relative, participating, optional and other special rights of
the shares of such series, and the qualifications, limitations or restrictions
thereof are as follows:
Section 1. Resignation and Amount. The shares of such series shall be
----------------------
designated as "Series A Junior Participating Preferred Stock", par value $1.00
per share, and the number of shares constituting such series shall be 50,000.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the prior and superior rights of the holders of any shares
of any series of Preferred Stock ranking prior and superior to the shares of
Series A Junior Participating Preferred Stock with respect to dividers, the
holders of shares of Series A Junior Participating Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for that purpose, quarterly dividends payable in cash on
the first day of March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Junior Participating Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $5.00 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock (as hereinafter defined) since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series A
Junior Participating Preferred Stock. In the event the Corporation shall at any
time after April 13, 1988 (the "Rights Declaration Date") (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to which holders of
shares of Series A Junior Participating Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series
A Junior Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $5.00 per share on the
Series A Junior Participating Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series A Junior Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A Junior
Participating Preferred Stock, unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Series
A Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a share-
by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
-------------
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Junior Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders of
the Corporation. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the number of votes per share to which holders of shares of
Series A Junior Participating Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction the
numerator of which is the number of shares of common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of shares of
Series A Junior Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a vote
of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Junior Participating
Preferred Stock shall be in arrears in an amount equal to six (6) quarterly
dividends thereon, the occurrence of such contingency shall mark the beginning
of a period (herein called a "default period") which shall extend until such
time when all accrued and unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period on all shares of Series A
Junior Participating Preferred Stock then outstanding shall have been declared
and paid or set apart for payment. During each
default period, all holders of Preferred Stock (including holders of the Series
A Junior Participating Preferred Stock) with dividends in arrears in an amount
equal to six (6) quarterly dividends thereon, voting as a class, irrespective of
series, shall have the right to elect two (2) Directors.
(ii) During any default period, such voting right of the holders of
Series A Junior Participating Preferred Stock may be exercised initially at a
special meeting called pursuant to subparagraph (iii) of this Section 3(C) or at
any annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting right nor the right of the
holders of any other series of Preferred Stock, if any, to increase, in certain
cases, the authorized number of Directors shall be exercised unless the holders
of ten percent (10%) in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the holders of Common
Stock shall not affect the exercise by the holders of Preferred Stock of such
voting right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default period, they
shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special meeting does
not amount to the required number, the holders of the Preferred Stock shall have
the right to make such increase in the number of Directors as shall be necessary
to permit the election by them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect Directors in any
default period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the holders of
Preferred Stock as herein provided or pursuant to the rights of any equity
securities ranking senior to or pari passu with the Series A Junior
---- -----
Participating Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an existing
default period, have previously exercised their right to elect Directors, the
Board of Directors may order, or any stockholder or stockholders owning in the
aggregate not less than ten percent (10%) of the total number of shares of
Preferred Stock outstanding, irrespective of series, may request, the calling of
special meeting of the holders of Preferred Stock, which meeting shall thereupon
be called by the President, a Vice-President or the Secretary of the
Corporation. Notice of such meeting and of any annual meeting at which holders
of Preferred Stock are entitled to vote pursuant to this paragraph (C) (iii)
shall be given to each holder of record of Preferred Stock by mailing a copy of
such notice to him at his last address as the same appears on the books of the
Corporation. Such meeting shall be called
for a time not earlier than 20 days and not later than 60 days after such order
or request or in default of the calling of such meeting within 60 days after
such order or request, such meeting may be called on similar notice by any
stockholder or stockholders owning in the aggregate not less than ten percent
(10%) of the total number of shares of Preferred Stock outstanding.
Notwithstanding the provisions of this paragraph (C) (iii), no such special
meeting shall be called during the period within 60 days immediately preceding
the date fixed for the next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and other
classes of stock of the Corporation if applicable, shall continue to be entitled
to elect the whole number of Directors until the holders of Preferred Stock
shall have exercised their right to elect two (2) Directors voting as a class,
after the exercise of which right (x) the Directors so elected by the holders of
Preferred Stock shall continue in office until their successors shall have been
elected by such holders or until the expiration of the default period and (y)
any vacancy in the Board of Directors may (except as provided in paragraph (C)
(ii) of this Section 3) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of stock which elected
the Director whose office shall have become vacant. References in this
paragraph (C) to Directors elected by the holders of a particular class of stock
shall include Directors elected by such Directors to fill vacancies as provided
in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the right
of the holders of Preferred Stock as a class to elect Directors shall cease, (y)
the term of any Directors elected by the holders of Preferred Stock as a class
shall terminate, and (z) the number of Directors shall be such number as may be
provided for in the Certificate of Incorporation or By-Laws irrespective of any
increase made pursuant to the provisions of paragraph (C) (ii) of this Section 3
(such number being subject, however, to change thereafter in any manner provided
by law or in the Certificate of Incorporation or By-Laws). Any vacancies in the
Board of Directors effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Series A Junior Participating
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred
Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably on the Series
A Junior Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, provided that the corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity stock
in exchange for shares of any stock of the Corporation ranking junior
(either an to dividends or upon dissolution, liquidation or winding up) to
the Series A Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration any shares of
Series A Junior Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after consideration
of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective
series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Junior
-----------------
Participating Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock and may be reissued as part of
a new series of Preferred Stock to be created by resolution or resolutions of
the Board of Directors, subject to the conditions and restrictions on issuance
set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
--------------------------------------
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior Participating Preferred Stock
shall have received $5.00 per share, plus an amount equal to all accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date
of such payment (the "Series A Liquidation Preference"). Following the payment
of the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph C
below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause (ii),
the "Adjustment Number"). Following the payment of the full amount of the
Series A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A Junior Participating Preferred Stock and Common
Stock, respectively, holders of Series A Junior Participating Preferred Stock
and holders of shares of Common Stock shall receive their ratable and
proportionate share of the remaining assets to be distributed in the ratio of
the Adjustment Number to 1 with respect to such Preferred Stock and Common
Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets available
to permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all
other series of preferred stock, if any, which rank on a parity with the Series
A Junior Participating Preferred Stock, then such remaining assets shall be
distributed ratably to the holders of such parity shares in proportion to their
respective liquidation preferences. In the event, however, that there are not
sufficient assets available to permit payment in full of the Common Adjustment,
then such remaining assets shall be distributed ratably to the holders of Common
Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock that were outstanding after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
--------------------------
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject to the provisions
for adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, or (ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each such
case the amount set forth in the preceding sentence with respect to the exchange
or change of shares of Series A Junior Participating Preferred Stock shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Junior Participating
-------------
Preferred Stock shall not be redeemable.
Section 9. Banking. The Series A Junior Participating Preferred Stock
-------
shall rank junior to all other series of the Corporation's Preferred Stock as to
the payment
of dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
Section 10. Amendment. The Certificate of Incorporation of the
---------
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect then adversely without the
affirmative vote of the holders of a majority or more of the outstanding shares
of Series A Junior Participating Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Junior Participating Preferred
-----------------
Stock may be issued in fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise voting rights, receive
dividends, participate in distributions and to have the benefit of all other
rights of holders of Series A Junior Participating Preferred Stock.
Section 12. Definition of Common Stock. As used herein "Common Stock"
--------------------------
shall mean the paired shares of Common Stock, par value $.10 per share, of this
Corporation and Hollywood Park Realty Enterprises, Inc.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do
affirm the foregoing as true under the penalties of perjury this 13th day of
April, 1988.
/s/ Marjorie L. Everett
______________________________
Chairman of the Board
Attest:
/s/ Donald M. Robbins
______________________________
Assistant Secretary
State of Delaware
Office of the Secretary of State
______________________________
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER,
WHICH MERGES:
"HP SUB, INC.", A DELAWARE CORPORATION, WITH AND INTO "HOLLYWOOD PARK
OPERATING COMPANY" UNDER THE NAME OF "HOLLYWOOD PARK OPERATING COMPANY", A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS
RECEIVED AND FILED IN THIS OFFICE THE SECOND DAY OF JANUARY, A.D. 1992, AT 8:30
O'CLOCK A.M.
/s/ Edward J. Freel
____________________________________
Edward J. Freel, Secretary of State
AUTHENTICATION:
DATE:
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 08:30 AM 01/02/1992
920025067 - 925079
CERTIFICATE OF MERGER
MERGING
HP SUB, INC.
WITH AND INTO
HOLLYWOOD PARK OPERATING COMPANY
Hollywood Park Operating Company, a corporation organized and existing
under and by virtue of the Delaware General Corporation Law, does hereby certify
that:
1. The name and state of incorporation of each of the constituent
corporations in the merger is as follows:
Name State of Incorporation
---- ----------------------
Hollywood Park Operating Delaware
Company
HP Sub, Inc. Delaware
2. An Agreement of Merger dated as of August 5, 1991, between the parties
to the merger has been approved, adopted, certified, executed and acknowledged
by each of the constituent corporations in accordance with Section 251 of the
Delaware General Corporation Law.
3. The name of the surviving corporation in the merger will be Hollywood
Park Operating Company.
4. The Certificate of Incorporation of the surviving
corporation is amended in the merger to read in its entirety as set forth in
Exhibit A attached hereto.
5. The executed Agreement of Merger is on file at the principal place of
business of the surviving corporation, which is 1050 South Prairie Avenue,
Inglewood, California 90301.
6. A copy of the Agreement of Merger will be furnished by the surviving
corporation, on request and without cost, to any stockholder of any constituent
corporation.
IN WITNESS WHEREOF, HOLLYWOOD PARK OPERATING COMPANY has caused this
Certificate of Merger to be duly executed by its
Vice Chairman and attested to by its Assistant Secretary this 26th day of
December, 1991.
HOLLYWOOD PARK OPERATING COMPANY
By: /s/ Harry Ornest
____________________________
Harry Ornest
Vice Chairman
ATTEST:
/s/ Donald M. Robbins
_________________________
Donald M. Robbins
Assistant Secretary
EXHIBIT A
---------
CERTIFICATE OF INCORPORATION
OF
HOLLYWOOD PARK OPERATING COMPANY
ONE: The name of this corporation is: Hollywood Park
---
Operating Company.
TWO: The address of its registered office in the State of Delaware is
---
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THREE: 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 Delaware General corporation Law ("DGCL").
FOUR: This corporation is authorized to issue one class of stock which
----
will be designated Common Stock; the total number of shares which the
corporation shall have authority to issue is One Hundred (100), and the par
value of each of such shares is one cent ($.01).
FIVE: The following provisions are inserted for the management of the
----
business and 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:
A. The business and affairs of the corporation shall be managed by
or under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by the DGCL or by this Certificate of
Incorporation or the Bylaws of the corporation, 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.
B. The Board of Directors may adopt, amend or repeal the Bylaws of
this corporation.
C. Election of directors need not be by written ballot.
SIX: The officers of the corporation shall be chosen in such a manner,
---
shall hold their offices for such terms and shall carry out such duties as are
determined solely by the Board of Directors, subject to the right of the Board
of
Directors to remove any officer or officers at any time with or without cause.
SEVEN: No director of the corporation shall be personally liable to the
-----
corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such a director as a director. Notwithstanding the foregoing sentence,
a director shall be liable to the extent provided by applicable law (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) pursuant to Section 174 of the
DGCL or (iv) for any transaction from which such director derived an improper
personal benefit. No amendment to or repeal of this Article SEVEN shall apply
to or have any effect on the liability or alleged liability of any director of
the corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal. If the DGCL is amended hereafter
to further eliminate or limit the personal liability of directors, the liability
of a director of this corporation shall be limited or eliminated to the fullest
extent permitted by the DGCL, as amended.
EIGHT: A. Right to Indemnification. Each person who was or is made a
----- ------------------------
party to or is threatened to be made a party to or is involuntarily involved in
any action, suit of proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or she is or was a
director or officer of the corporation, or is or was serving (during his or her
tenure as director and/or officer) at the request of the corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, whether the basis of such Proceeding
is an alleged action or inaction in an official capacity as a director or
officer or in any other capacity while serving as a director or officer, shall
be indemnified and held harmless by the corporation to the fullest extent
authorized by the DGCL (or other applicable law), as the same exists or may
hereafter be amended, against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection with such Proceeding. Such director or officer shall have the
right to be paid by the corporation for expenses incurred in defending any such
Proceeding in advance of its final disposition; provided, however, that, if the
DGCL (or other applicable law) requires, the payment of such expenses in advance
of the final disposition of any such Proceeding shall be made only upon receipt
by the corporation of an undertaking by or on behalf of such director or officer
to repay all amounts so advanced if it should be determined ultimately that he
or she is not
entitled to be indemnified under this Article EIGHT or otherwise.
B. Right of Claimant to Bring Suit. If a claim under paragraph A of
-------------------------------
this Article EIGHT is not paid in full by the corporation within ninety (90)
days after a written claim has been received by the corporation, the claimant
may at any time thereafter bring suit against the corporation to recover the
unpaid amount of the claim, together with interest thereon, and, if successful
in whole or in part, the claimant shall also be entitled to be paid the expense
of prosecuting such claim, including reasonable attorneys' fees incurred in
connection therewith. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
Proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the DGCL (or
other applicable law) for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (or of its full Board of
Directors, its directors who are not parties to the Proceeding with respect to
which indemnification is claimed, its stockholders, or independent legal
counsel) to have made a determination prior to the commencement of such action
that indemnification of the claimant is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in the DGCL (or
other applicable law), nor an actual determination by any such person or persons
that such claimant has not met such applicable standard of conduct, shall be a
defense to such action or create a presumption that the claimant has not met the
applicable standard of conduct.
C. Non-Exclusivity of Rights. The rights conferred by this Article
-------------------------
EIGHT shall not be exclusive of any other right which any director, officer,
representative, employee or other agent may have or hereafter acquire under the
DGCL or any other statute, or any provision contained in the corporation's
Certificate of Incorporation or Bylaws, or any agreement, or pursuant to a vote
of stockholders or disinterested directors, or otherwise.
D. Insurance and Trust Fund. In furtherance and not in limitation
------------------------
of the powers conferred by statute:
(1) the corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
corporation, or is 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 him and
incurred by him in any such capacity,
or arising out of his status as such, whether or not the corporation would have
the power to indemnify him against such liability under the provisions of law;
and
(2) the corporation may create a trust fund, grant a security interest
and/or use other means (including, without limitation, letters of credit, surety
bonds and/or other similar arrangements), as well as enter into contracts
providing indemnification to the fullest extent permitted by law and including
as part thereof provisions with respect to any or all of the foregoing, to
ensure the payment of such amount as may become necessary to effect
indemnification as provided therein, or elsewhere.
E. Indemnification of Employees and Agents of the Corporation. The
----------------------------------------------------------
corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, including the right to be paid by
the corporation the expenses incurred in defending any Proceeding in advance of
its final disposition, to any employee or agent of the corporation to the
fullest extent of the provisions of this Section or otherwise with respect to
the indemnification and advancement of expenses of directors and officers of the
corporation.
F. Effect of Repeal or Modification. Any repeal or modification of
--------------------------------
this Article EIGHT shall not change the rights of an officer or director to
indemnification with respect to any action or omission occurring prior to such
repeal or modification.
NINE: The corporation reserves the right to repeal, alter, amend, or
----
rescind any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation.
TEN: The name and mailing address of the sole incorporator is as follows:
---
Ashok Mukhey
Irell & Manella
1800 Avenue of the Stars
Suite 900
Los Angeles, California 90067