EXHIBIT 3.13
RESTATED ARTICLES OF INCORPORATION
OF
TURF PARADISE, INC.
Robert L. Walker, President, and Michael P. Perikly, Secretary, of
Turf Paradise, Inc., an Arizona corporation hereby certify as follows:
On November 17, 1993, by resolution adopted by the Board of Directors
of Turf Paradise, Inc., in accordance with Arizona Revised Statutes (S) 10-064,
the Articles of Incorporation of Turf Paradise, Inc., were restated as follows:
ARTICLE I
The names, residences and post office addresses of the incorporators
are:
NAME RESIDENCE POST OFFICE ADDRESS
- ---- --------- -------------------
Walter R. Cluer 216 W. Turney Avenue Phoenix, Arizona
C. Thad Mullen 902 W. Campus Dr. Phoenix, Arizona
Charles L. Strouss 742 W. Monte Vista Rd. Phoenix, Arizona
The name of this corporation shall be TURF PARADISE, INC. and its
principal place of business shall be in Phoenix, Maricopa County, Arizona, but
other offices may be established and maintained, within or outside of the State
of Arizona at such places as the Board of Directors may designate, where
meetings of shareholders and directors may be held, and any and all corporate
business transacted.
ARTICLE II
The general nature of the business in which this corporation shall
engage is as follows, to wit:
To carry on, or cause to be carried on, the business of a racecourse
in all its branches; to lay out and prepare, or cause to be layed out and
prepared, lands for the running of horse races, greyhound races and races of all
other kind and description without limitation; to purchase, lease, build,
construct, erect or otherwise acquire and to own, control, manage and conduct
racecourses, grand and other stands, stables, paddocks, parking facilities,
clubhouses, refreshment rooms, booths, concessions and other structures,
buildings and
conveniences without limitation, and to contract, let, lease and rent the same
to others; to promote, hold and conduct race meetings and other shows and
exhibitions.
To purchase, lease, build, construct, erect or otherwise acquire
grounds and improvements for giving public exhibitions of baseball and other
field games, and outdoor entertainment of all kinds, and to promote, hold and
conduct the same; to contract, let, lease and rent such grounds and improvements
to others.
To purchase, lease or otherwise acquire and to own, control, operate
and conduct amusement enterprises of every kind and character without
limitation, and to purchase, lease, construct or otherwise acquire any lands,
building, improvements and conveniences incident to the conduct and operation of
such amusement enterprises.
To construct, purchase, lease or otherwise acquire, own, maintain,
operate, sell, lease or otherwise dispose of restaurants, inns, eating houses,
taverns, concessions and places of entertainment and refreshment.
To buy, sell and generally trade and deal in ice cream, confections,
delicacies and food products of every kind and description, soft drinks and
beverages of all kinds, and spirituous, vinous and malt liquors.
To purchase, buy, sell, acquire, rent, lease, hire, hypothecate,
mortgage, manufacture, handle, repair and dispose of automobiles, equipment and
parts thereof and therefor, and to dispose of automobile accessories, automobile
parts, tires and tubes, and to engage in a general automobile accessory,
automobile parts, replacement, tire and tube business.
To purchase, buy, sell, acquire, rent, lease, hire, hypothecate,
mortgage, manufacture, handle, repair and dispose of merchandise of all kinds,
including specifically (but not thereby excluding any merchandise) sporting
goods, guns, ammunition, athletic supplies, uniforms, hardware, books,
periodicals, animals, electric equipment, radio apparatus and the equipment
thereof and therefor, and to engage generally in the mercantile and sporting
goods business.
To buy, sell, rent, lease and otherwise deal in all kinds of
automobiles, tractors, trucks, motor vehicles, and motor equipment and
accessories, parts and appliances thereof, and to act as purchasing and selling
agent therefor; to lease, construct, buy or otherwise acquire, own, maintain and
operate sales rooms, storage houses, garages, factories, shops and buildings for
the sale, distribution, storage and repair of motor vehicles and equipment of
all kinds.
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To deal generally in airplanes, flying machines, and dirigible
balloons of any and all types whatsoever, of every name and nature, whether of
domestic or foreign make; to deal in parts and supplies for said machines; to
carry for hire passengers or freight in said machines, on special trips, or as
common carriers on regularly established routes; to maintain a service station
for the repair, overhauling and testing of said machines, and to maintain supply
depots for airplanes and flying machines service generally. Also to manufacture
and to buy and sell any and all machinery, supplies and equipment necessary or
incidental to carrying on the general business of buying, selling, repairing,
testing and flying airplanes and flying machines of every description, and to do
any and all things necessary and incidental to the carrying on of said business,
including the right to own, buy, lease or otherwise acquire such real estate, as
may be necessary for carrying out the purposes for which this corporation is
organized.
To buy, contract for, lease and in any and all other ways acquire,
take, hold and own, and to sell, mortgage, lease and otherwise dispose of lands,
and all other kinds and classes of real property and rights and interests
therein, and to improve, develop, subdivide and otherwise manage and operate the
same; to lend and invest its funds and secure the same by mortgage, deed of
trust, collateral or otherwise.
To buy, contract for, lease and in any and all other lawful ways
acquire, take, hold and own personal property of all kinds, and to sell,
mortgage, lease and otherwise dispose of the same; and to buy, sell, hold, use,
lease and deal in franchises, easements, licenses, privileges, rights of way,
and deal in personal property of every kind and character.
To borrow money and to issue bonds, debentures, notes and other
evidences of indebtedness and obligations from time to time for any lawful
corporate purpose and to mortgage, pledge and otherwise charge any or all of its
properties, rights, privileges and assets to secure the payment thereof.
To purchase, own, hold, hypothecate any patent rights, privileges,
trademarks or secret processes; to act as agent, trustee, broker, or in any
other fiduciary capacity.
To lend money, also purchase, acquire, own, hold, sell, assign,
transfer, mortgage, pledge or otherwise dispose of and deal in shares of the
capital stock, bonds, notes or other securities or evidences of indebtedness of
this or any other corporation or association, and to exercise all the rights,
powers and privileges of ownership, including the right to vote thereon to the
same extent as a natural person might or could do.
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To make and perform contracts of every kind and description, and in
carrying on its business or for the purpose of attaining and furthering any of
its objects, to do any and all things which a natural person could do, and which
now or hereafter may be authorized by law, and in general do and perform such
acts and things and transact such business in connection with the foregoing
objects not inconsistent with law, in any part of the world.
ARTICLE III
The capital stock of the corporation shall consist of 10,000,000
shares of common stock having no par value per share, and 300,000 shares of
preferred stock of the par value of $20.00 each share. All issued shares of the
capital stock shall be deemed fully paid and non-assessable. The shares of
capital stock may be issued and sold from time to time by the corporation for
such consideration and upon such terms as may from time to time be fixed by the
Board of Directors without action by the shareholders. All or any portion of
the capital stock may be issued in payment for real or personal property,
services, or any other right or thing of value, for the use and purposes of the
corporation, and when so issued shall become and be fully paid and non-
assessable; and the directors shall be the sole judges of any property, right or
thing acquired in exchange for capital stock.
The holders of preferred stock shall be entitled to receive out of
funds legally available therefor an annual dividend at the rate of and up to the
amount of One Dollar ($1.00) per share, payable before any dividends are paid
upon common stock, and such preferential dividend shall be cumulative.
Upon any dissolution, liquidation, merger or consolidation of the
company (whether voluntary or involuntary) or upon any distribution of capital,
or in the event of insolvency, there shall be paid to the holders of the
preferred stock Twenty Dollars ($20.00) per share before any sum shall be paid
to or any assets distributed among the holders of common stock.
The corporation may at any time, and from time to time, at the option
of the Board of Directors, upon sixty (60) days' notice by mail to the holders
of record thereof, redeem and retire the whole or an part of the outstanding
preferred stock on any dividend paying date after the issuance thereof, by
paying all unpaid dividends accrued thereon together with the redemption price
determined as follows:
(a) if such redemption is made within three years after the issuance
thereof, the redemption price shall be Twenty and 40/100 Dollars
($20.40) for each share redeemed;
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(b) if such redemption is made more than three but less than five
years after the issuance thereof, the redemption price shall
be Twenty and 20/100 Dollars ($20.20) for each share redeemed;
(c) if such redemption is made more than five years after the
issuance thereof, the redemption price shall be Twenty Dollars
($20.00) for each share redeemed.
If less than all of the outstanding shares of preferred stock are to be
redeemed, the shares to be redeemed shall be selected by lot in such manner as
the Board of Directors shall determine.
If the holder of any preferred stock called for redemption shall fail
to surrender the certificates evidencing such shares, such shares shall
nevertheless be deemed to have been redeemed, retired and cancelled upon the
date fixed for redemption, and the former holder thereof shall not have or
exercise any right with respect thereto except to receive the amount payable on
account of such redemption, without interest, upon surrender of the certificate
evidencing the shares redeemed.
Holders of the preferred stock shall have no right to vote at any
regular or special meeting of the shareholders, and shall have no voice in the
management of the affairs of the corporation; except that in the event of the
failure of the corporation to pay two annual dividends to the preferred
shareholders, then and thereafter until all past dividends are paid the
preferred shareholders shall have equal voting rights and powers with the common
shareholders.
ARTICLE IV
The duration of the Corporation shall be perpetual.
ARTICLE V
The affairs of the corporation shall be conducted by a Board of
Directors and such officers as the said directors may elect or appoint. The
number of directors shall be designated in the bylaws from time to time but
shall not be less than five nor more than fifteen. The directors shall be
elected each year at the Annual Meeting and shall serve until their successors
have been elected and shall qualify.
The initial directors of the corporation were:
Walter R. Cluer
C. Thad Mullen
Charles L. Strouss
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The directors shall have power to adopt, amend and rescind bylaws, to
fill vacancies occurring in the Board from any cause, and appoint from their own
number an executive committee and vest such committee with all the powers
granted the directors by these articles.
ARTICLE VI
(This Article deleted by amendment June 4, 1980)
ARTICLE VII
The private property of the stockholders, directors and officers of
this corporation shall be forever exempt from its debts and obligations.
ARTICLE VIII
This corporation does hereby appoint MICHAEL P. PERIKLY, of Phoenix,
Maricopa County, Arizona, who has been a bona fide resident of Phoenix, Maricopa
County, Arizona, for at least three (3) years, its lawful agent in and for the
State of Arizona, for and on behalf of this corporation to accept and
acknowledge service of, and upon whom may be served all necessary process or
processes in any action, suit or proceeding that may be brought against said
corporation in any of the courts of the said State of Arizona, such service of
process or notice, or the acceptance thereof by said agent endorsed thereon to
have the same effect as if served upon the President and Secretary of said
corporation.
ARTICLE IX
To the fullest extent that the law of the State of Arizona, as it now
exists or as it may hereafter be amended, permits the elimination of or
limitation on the liability of directors, no director of the corporation shall
be liable for monetary damages for any action taken or for any failure to take
any action. Any repeal or modification of this Article shall be prospective
only and shall not adversely affect any limitation on the personal liability of
a director of the corporation existing at the time of such repeal or
modification.
ARTICLE X
The Corporation expressly elects not to be subject to the provisions
of Arizona Revised Statutes, Title 10, Chapter 6, Article 2, or any
substantially similar successor law. This Article X shall become effective at
the later of January 23, 1989 or the filing with the Arizona corporation
Commission of Articles of Amendment adopting this Article X.
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ARTICLE XI
The Corporation expressly elects not to be subject to the provisions
of Arizona Revised Statutes, Title 10, Chapter 6, Article 3, or any
substantially similar successor law. This Article XI shall become effective
September 9, 1990 and shall not apply to any business combination of the
corporation with an interested shareholder whose share acquisition date was on
or before July 22, 1987.
The foregoing Restated Articles of Incorporation correctly set forth
without change all of the operative provisions of the Articles of Incorporation
as heretofore amended and supersede the original Articles of Incorporation and
all amendments thereto.
The names and addresses of the persons who are serving as directors as
of the effective date of these Restated articles of Incorporation are:
Name Address
---- -------
Frank J. Kush 113 E. Loma Vista Drive
Tempe, AZ 85282
William S. Levine 2810 W. Camelbek Road
Phoenix, AZ 85017
John R. Long c/o Ladbroke Racing Corporation
Foster Plaza 9, 750 Holiday Dr.
Pittsburgh, PA 15220
Dwight Patterson 1761 W. Kiowa
Mesa, AZ 85202
Michael P. Perikly 1501 W. Bell Road
Phoenix, AZ 85023
Robert L. Walker 1501 W. Bell Road
Phoenix, AZ 85023
Max Wilson 1325 Villa Nueva
Litchfield Park, AZ 85340
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IN WITNESS WHEREOF, the undersigned have executed this Restated
Articles of Incorporation for and on behalf of Turf Paradise, Inc., this 24th
day of November, 1993.
TURF PARADISE, INC.
By_____________________________
Robert Walker, President
By_____________________________
Michael P. Perikly, Secretary
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ARTICLES OF MERGER
OF
HP ACQUISITION, INC.,
WITH AND INTO
TURF PARADISE, INC.
These Articles of Merger are delivered to the Arizona Corporation
Commission for filing pursuant to Section 10-074, Arizona Revised Statutes, by
HP Acquisition, Inc., an Arizona corporation ("Merging Corporation"), and Turf
Paradise, Inc., an Arizona corporation ("Surviving Corporation").
FIRST: The Plan of Merger attached hereto as Exhibit 1 and incorporated
herein by this reference was approved by the shareholders of both the
Merging Corporation and the Surviving Corporation.
SECOND: As to each such corporation, the number of shares outstanding and
entitled to vote on such Plan of Merger are as follows:
Number of Shares
Name of Outstanding and
Corporation Entitled to Vote Class
----------- ---------------- -----
Turf Paradise, Inc. 2,596,438 Common
No Par Value
HP Acquisition, Inc. 1,000 Common
$1.00 Par Value
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THIRD: As to each such corporation, the total number of shares voted for and
against such Plan of Merger are as follows:
Name of Voted Voted
Corporation Class For Against
----------- ----- ----- -------
Turf Paradise, Inc. Common 1,872,781 6,699
No Par Value
HP Acquisition, Inc. Common 1,000 -0-
$1.00 Par Value
FOURTH: Pursuant to the Plan of Merger, the Restated Articles of
Incorporation of the Surviving Corporation are hereby amended as
set forth in Exhibit 2 hereto.
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IN WITNESS WHEREOF, the undersigned have executed this instrument for
and on behalf of said corporations this ____ day of August, 1994.
SURVIVING CORPORATION: TURF PARADISE, INC.
By:_____________________________
Robert L. Walker, President
By:_____________________________
Michael P. Perikly, Secretary
MERGING CORPORATION: HP ACQUISITION, INC.
By:_____________________________
G. Michael Finnigan,
Vice President
By:_____________________________
G. Michael Finnigan,
Assistant Secretary
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EXHIBIT 1
---------
PLAN OF MERGER
PLAN OF MERGER dated as of March 30, 1994 by and among Hollywood Park,
Inc., a Delaware corporation ("PARENT"), HP Acquisition, Inc., an Arizona
corporation and a wholly-owned subsidiary of Parent ("SUB"), and Turf Paradise,
Inc., an Arizona corporation ("TURF").
In consideration of the mutual representations, warranties and covenants
contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
Except as otherwise provided herein, the capitalized terms set forth below
shall have the following meanings:
1.1 "AGCL" shall mean the Arizona General Corporation Law.
1.2 "CLOSING" shall mean the closing of the transactions contemplated by
this Plan of Merger and the Merger Agreement held pursuant to Section 1.3 of the
Merger Agreement.
1.3 "EFFECTIVE TIME" shall mean the time at which the Articles of Merger
in connection with the Merger are filed with the Arizona Corporation Commission.
1.4 "EFFECTIVE DATE" shall mean the date on which the Effective Time shall
occur.
1.5 "MERGER AGREEMENT" shall mean that certain Agreement of Merger dated
March 30, 1994, by and among Parent, Sub and Turf.
1.6 "PARENT COMMON STOCK" shall mean the common stock, par value $.10 per
share, of Parent.
1.7 "STOCKHOLDERS MEETING" shall mean the meeting of the stockholders of
Turf held pursuant to Section 4.4 of the Merger Agreement.
1.8 "SUB COMMON STOCK" shall mean the common stock, $1.00 par value per
share, of Sub.
1.9 "SURVIVING CORPORATION" shall mean Turf as the corporation surviving
the Merger.
1.10 "TURF COMMON STOCK" shall mean the common stock, no par value per
share, of Turf.
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ARTICLE II
TERMS OF MERGER
2.1 The Merger. Subject to the terms and conditions of this Plan of
----------
Merger and the Merger Agreement, Sub shall be merged with and into Turf and the
separate corporate existence of Sub shall cease (the "MERGER"). The Merger
shall become effective at the Effective Time.
2.2 Conversion of Sub Common Stock. Each of the one thousand (1000)
------------------------------
shares of Sub Common Stock issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger, and without any action on the
part of the holder thereof, be converted into one (1) share of validly issued,
fully paid and nonassessable shares of common stock of the Surviving
Corporation.
2.3 Conversion of Turf Common Stock. At the Effective Time, by virtue of
-------------------------------
the Merger, and without any action on the part of Parent, Sub, Turf or any
holder of Turf Common Stock: Subject to Sections 2.4 and 4.2 hereof, all shares
of Turf Common Stock shall be cancelled and extinguished and shall be converted
into the right to receive that number of shares of validly issued, fully paid
and nonassessable Parent Common Stock as have a Fair Market Value (as defined
below) of $13.00 per share of Turf Common Stock. For purposes of this Section
2.3, the Fair Market Value of a share of Parent Common Stock shall mean the
weighted average price of all trades on the NASDAQ National Market System (as
reported by NASDAQ) for the twenty trading days ending on the date immediately
preceding the date of the Closing.
2.4 Dissenters Rights. Subject to the second sentence of this Section
-----------------
2.4, notwithstanding anything to the contrary in section 2.3, any shares of Turf
Common Stock held by a holder who has demanded and perfected his right for
appraisal of such shares in accordance with AGCL Section 10-081 and who, as of
the Effective Time, has not effectively withdrawn or lost such right to
appraisal ("DISSENTING SHARES"), shall not be converted into or represent a
right to receive Parent Common Stock pursuant to section 2.3 and payment for
fractional shares pursuant to section 4.2, but the holder thereof shall only be
entitled to such rights as are granted under AGCL Section 10-081.
Notwithstanding the foregoing, if any holder of shares of Turf Common Stock who
demands appraisal of such shares under AGCL Section 10-081 shall effectively
withdraw or lose (through failure to perfect or otherwise) such holder's right
to appraisal, then, as of the later of the Effective Time or the occurrence of
such event, such holder's shares shall automatically be converted into and
represent only the right to receive Parent Common Stock pursuant to section 2.3
and payment for fractional shares pursuant to section 4.2, without interest
thereon, upon
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surrender of the certificate or certificates representing such shares.
2.5 Articles of Incorporation. The Articles of Incorporation of the
-------------------------
Surviving Corporation shall be amended and restated at and as of the Effective
Time to read as did the Articles of Incorporation of Sub immediately before the
Effective Time, a copy of which is attached hereto as Exhibit A (except that the
name of the Surviving Corporation shall remain unchanged).
2.6 By-laws. The By-laws of the Surviving Corporation shall be amended
-------
and restated at and as of the Effective Time to read as did the By-laws of the
Sub immediately before the Effective Time (except that the name of the Surviving
Corporation shall remain unchanged).
2.7 Directors and Officers. The directors and officers of Sub at the
----------------------
Effective Time shall be the directors and officers of the Surviving Corporation
and shall hold office from the Effective Time until their respective successors
are duly elected or appointed and qualified in the manner provided in the By-
laws of the Surviving Corporation, or as otherwise provided by law.
ARTICLE III
EFFECT OF MERGER
Following the Merger, Turf will be the Surviving Corporation and will
operate under the name "Turf Paradise, Inc.", and the separate corporate
existence of Sub shall cease. The Merger shall have the further effects set
forth in AGCL Section 10-076.
ARTICLE IV
DELIVERY OF CONSIDERATION
4.1 Surrender of Certificates by Turf Stockholders. As soon as
----------------------------------------------
practicable after the Effective Time, Parent shall make available, and each
holder of Turf Common Stock immediately before the Effective Time (a "HOLDER")
shall be entitled to receive, upon surrender to the exchange agent selected by
Parent (the "EXCHANGE AGENT") of certificates representing such Holder's total
ownership of Turf Common Stock, certificates representing the number of shares
of Parent Common Stock as is determined pursuant to Section 2.3, taking into
account any fractional shares payable in cash in accordance with Section 4.2.
Such certificates representing Parent Common Stock shall be deemed to have been
issued on the Effective Date. Until surrendered in accordance with the
provisions of this Section 4.1, a certificate that immediately prior to the
Effective Time represented shares of Turf Common
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Stock shall represent for all purposes only the right to receive Parent Common
Stock. At any time after six months following the Effective Time, Parent may
act as Exchange Agent for all purposes under this Plan of Merger and the Merger
Agreement.
4.2 Fractional Shares. Notwithstanding anything to the contrary in
-----------------
Section 2.3, no fractional share of Parent Common Stock shall be issued. In
lieu of issuing fractional shares, each holder of Turf common Stock (a "HOLDER")
who would otherwise have been entitled to a fractional share of Parent Common
Stock pursuant to Section 2.3 shall be entitled to receive upon surrender to the
Exchange Agent pursuant to Section 4.1 of certificates representing such
Holder's total ownership of Turf Common Stock cash (without interest) in an
amount equal to such Holder's proportionate interest in the net proceeds from
the sale or sales in the open market by the Exchange Agent, on behalf of all
such Holders, of the aggregate fractional shares of Parent Common Stock that
would otherwise have been issued pursuant to Section 2.3. As soon as
practicable after the Effective Date, the Exchange Agent shall determine the
number of "EXCESS SHARES", which shall be the excess of (i) the number of shares
of Parent Common Stock delivered to the Exchange Agent by Parent over (ii) the
aggregate number of full shares of Parent Common Stock to be issued to Holders,
and as soon as practicable shall sell the Excess Shares at the prevailing prices
on the NASDAQ National Market System in one or more sales. Such sales shall be
in round lots to the extent practicable. Parent shall pay all commissions,
transfer taxes and other out-of-pocket transaction costs incurred in connection
with such sales. Until distribution to Holders, the net proceeds of such sales
shall be held by the Exchange Agent in trust for such Holders.
4.3 Dividends; Transfer Taxes. No dividends or other distributions that
-------------------------
are declared or made with respect to Parent Common Stock to be issued pursuant
to Section 2.3 will be paid until the certificates representing the Turf Common
Stock converted into such Parent Common Stock are surrendered pursuant to
Section 4.1. Upon such surrender, there shall be paid to the person in whose
name the certificates representing such Parent Common Stock shall be issued any
dividends or other distributions that shall have become payable with respect to
such Parent Common Stock in respect of a record date that is later than the
Effective Date. In no event shall Parent be obligated to pay any interest with
respect to such dividends or other distributions. In the event that any
certificates for any shares of Parent Common Stock are to be issued in a name
other than that in which the certificates representing shares of Turf Common
Stock surrendered in exchange therefor are registered, it shall be a condition
of such exchange that the person requesting such exchange shall pay to the
Exchange Agent any transfer or other taxes required by reason of the issuance of
certificates for such shares of
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Parent Common Stock in a name other than that of the registered holder of the
certificate surrendered, or shall establish to the satisfaction of the Exchange
Agent that such tax has been paid or is not applicable. Notwithstanding the
foregoing, neither the Exchange Agent nor any party to this Agreement shall be
liable to a holder of shares of Turf Common Stock for any shares of Parent
Common Stock or dividends thereon delivered to a public official pursuant to any
applicable escheat law.
4.4 Closing of Transfer Books. After the Effective Time, there shall be
-------------------------
no transfers on the stock transfer books of the Surviving Corporation of the
shares of Turf Common Stock issued and outstanding immediately prior to the
Effective Time. If, after the Effective Time, certificates representing shares
of Turf Common Stock are presented to the Surviving Corporation, they shall be
cancelled and exchanged for shares of Parent Common Stock, as provided in
Section 4.1.
ARTICLE V
MISCELLANEOUS
5.1 Conditions Precedent. The respective obligations of each party under
--------------------
this Plan of Merger shall be subject to the satisfaction, prior to or on the
date of the Closing, of the conditions set forth in Articles VI and VII of the
Merger Agreement, each of which conditions may be waived by the appropriate
party.
5.2 Termination. The Merger Agreement may be terminated pursuant to
-----------
Section 8.1 thereof, and this Plan of Merger shall terminate upon the
termination of the Merger Agreement in accordance with Section 8.1 thereof. In
the event of any such termination, all obligations of the parties under the
Merger Agreement and this Plan of Merger shall terminate without liability of
any part, to any other party, except (a) that the obligations set forth in
Sections 2.18, 3.5, 10.4, 10.9, 10.13 and 10.14 of the Merger Agreement shall
survive any such termination, and (b) for liability for out-of-pocket expenses
for any intentional material misrepresentation set forth in the Merger
Agreement.
5.3 Cooperation. Each party hereto agrees to execute any and all further
-----------
documents and writings and perform such other reasonable actions, whether before
or after the Closing, that may be or become necessary, proper or advisable to
effectuate and carry out such transactions and to obtain all governmental
consents (which shall not include any obligation to make payments other than
required filing fees).
5.4 Amendments. To the extent permitted by law, this Plan of Merger may
----------
be amended by a written agreement signed by all of the parties hereto; provided,
however, that the
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provisions of Articles II and IV of this Plan of Merger relating to the
consideration to be paid for the shares of Turf Common Stock shall not be
amended after the Stockholders Meeting so as to decrease the amount or change
the form of such consideration without the approval of such stockholders.
HOLLYWOOD PARK, INC.
By:_____________________________
G. Michael Finnigan
Executive Vice President,
Chief Financial Officer and
President-Gaming and
Entertainment Division
HP ACQUISITION, INC.
By:_____________________________
G. Michael Finnigan
Vice President, Treasurer and
Assistant Secretary
TURF PARADISE, INC.
By:_____________________________
Robert L. Walker
President
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EXHIBIT A
---------
ARTICLES OF INCORPORATION
OF
HP ACQUISITION, INC.
--------------------
The undersigned, having associated ourselves together for the purpose
of forming a corporation under and by virtue of the laws of the State of
Arizona, do hereby adopt the following original Articles of Incorporation:
I
Name
----
The name of the corporation is HP Acquisition, Inc. (the
"Corporation").
II
Incorporators
-------------
The names and addresses of the incorporators are as follows:
Alvin G. Segel, Esq.
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067
Ian C. Wiener, Esq.
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067
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III
Purpose and Initial Business
----------------------------
The purpose for which the Corporation is organized is the transaction
of any or all lawful business for which corporations may be incorporated under
the laws of the State of Arizona, as they may be amended from time to time.
The Corporation initially intends to conduct the business of owning
and operating a horse racetrack facility.
IV
Authorized Capital
------------------
The aggregate authorized capital stock of the Corporation shall be One
Thousand (1,000) shares of Common Stock, $1.00 Par Value. The Board of
Directors of the Corporation may, from time to time, cause the Corporation to
purchase its own shares to the extent of the unreserved and unrestricted earned
capital surplus of the Corporation; and may, from time to time, distribute on a
pro rata basis to its shareholders out of the capital surplus of the Corporation
a portion of its assets, in cash or property. The Corporation may issue rights
and options to purchase shares of stock of the Corporation to directors,
officers or employees of the Corporation or any affiliate thereof, and no
shareholder approval or ratification of any such issuance of rights and options
shall be required.
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V
Board of Directors
------------------
The initial Board of Directors shall consist of three (3) directors.
The names and addresses of those persons to serve as directors until the first
annual meeting of shareholders or until their successors are elected and qualify
are:
Gordon Michael Finnigan
c/o Hollywood Park, Inc.
1050 South Prairie Avenue
Inglewood, California 90301
Randall Dee Hubbard
c/o Hollywood Park, Inc.
1050 South Prairie Avenue
Inglewood, California 90301
Donald M. Robbins
c/o Hollywood Park, Inc.
1050 South Prairie Avenue
Inglewood, California 90301
VI
Statutory Agent
---------------
The name and address of the initial statutory agent of the Corporation
is The Prentice Hall Corporation System, Inc., 7037 North 11th Street, Phoenix,
Arizona 85020.
VII
Indemnification of Directors
----------------------------
A director of this Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director except for liability to the extent provided by applicable law
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(i) for any breach of the director's duty of loyalty to the Corporation or its
shareholders, (ii) for acts or omissions which are not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) for
authorizing the unlawful payment of a dividend or other distribution on the
Corporation's capital stock or the unlawful purchase of its capital stock, (iv)
for any transaction from which the director derived an improper personal
benefit, and (v) for a violation of Section 10-041 of the Arizona General
Corporation Law as the same exists or hereafter may be amended. If the Arizona
General Corporation Law hereafter is amended to authorize the further
elimination or limitation of the liability of directors, then the liability of a
director of the Corporation, in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted by the amended
Arizona General Corporation Law. Any repeal or modification of this Article
shall be prospective only and shall not adversely affect any limitation on the
personal liability of a director of the Corporation existing at the time of such
repeal or modification.
IN WITNESS WHEREOF, we hereunto affix our signatures this 22nd day of
March, 1994.
________________________________
Alvin G. Segel
________________________________
Ian C. Wiener
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EXHIBIT 2
---------
AMENDMENT TO THE
RESTATED ARTICLES OF INCORPORATION
OF
TURF PARADISE, INC.
Effective this 11th day of August, 1994, and pursuant to that certain
Plan of Merger dated as of March 30, 1994 by and among Hollywood Park, Inc., a
Delaware corporation, HP Acquisition, Inc., an Arizona corporation and Turf
Paradise, Inc., an Arizona corporation ("TURF PARADISE"), the Restated Articles
of Incorporation of Turf Paradise (the "RESTATED ARTICLES") are hereby amended
as follows:
1. Article II of the Restated Articles is hereby amended and
restated in its entirety as follows:
ARTICLE II.
The purpose for which the corporation is organized is the
transaction of any or all lawful business for which corporations may
be incorporated under the laws of the State of Arizona, as they may be
amended from time to time.
The corporation initially intends to conduct the business of
owning and operating a horse racetrack facility.
2. Article III of the Restated Articles is hereby amended and
restated in its entirety as follows:
ARTICLE III.
The aggregate authorized capital stock of the corporation shall
be One Thousand (1,000) shares of Common Stock, $1.00 Par Value. The
Board of Directors of the corporation may, from time to time, cause
the corporation to purchase its own shares to the extent of the
unreserved and unrestricted earned capital surplus of the corporation;
and may, from time to time, distribute on a pro rata basis to its
shareholders out of the capital surplus of the corporation a portion
of its assets, in cash or property. The corporation may issue rights
and options to purchase shares of stock of the corporation to
directors, officers or employees of the corporation or any affiliate
thereof, and
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no shareholder approval or ratification of any such issuance of rights
and options shall be required.
3. Article V of the Restated Articles is hereby amended and restated
in its entirety as follows:
ARTICLE V.
The initial Board of Directors of the corporation consisted of
three (3) directors. The names and addresses of the initial directors
of the corporation were:
NAME ADDRESS
---- -------
Walter R. Cluer 216 W. Turney Avenue
Phoenix, Arizona
C. Thad Mullen 902 W. Campus Dr.
Phoenix, Arizona
Charles L. Strouss 742 W. Monte Vista Rd.
Phoenix, Arizona
4. Article IX of the Restated Articles is hereby amended and restated
in its entirety as follows:
ARTICLE IX
A director of this corporation shall not be personally liable to
the corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, except for liability to the extent
provided by applicable law (i) for any breach of the director's duty
of loyalty to the corporation or its shareholders, (ii) or acts or
omissions which are not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for authorizing the
unlawful payment of a dividend or other distribution on the
corporation's capital stock or the unlawful purchase of its capital
stock, (iv) for any transaction from which the director derived an
improper personal benefit, and (v) for a violation of Section 10-041
of the Arizona General Corporation Law as the same exists or hereafter
may be amended. If the Arizona General Corporation Law hereafter is
amended to authorize the further
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elimination or limitation of the liability of directors, then the
liability of a director of the corporation, in addition to the
limitation on personal liability provided herein, shall be limited to
the fullest extent permitted by the amended Arizona General
Corporation Law. Any repeal or modification of this Article shall be
prospective only and shall not adversely affect any limitation on the
personal liability of a director of the corporation existing at the
time of such repeal or modification.
5. Article X of the Restated Articles is hereby deleted in its
entirety.
6. Article XI of the Restated Articles is hereby deleted in its
entirety.
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