Exhibit 3.5
BY-LAWS
OF
MEDITRUST CORPORATION
(a Delaware corporation)
(as amended and restated on February 27, 1998)
ARTICLE I
Offices
Section 1.1. Registered Office. The registered office shall be in the City
of Wilmington, County of New Castle, State of Delaware.
Section 1.2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
Business Purpose and Investment Policy
Section 2.1. Corporation Taxed as Real Estate Investment Trust. The
Corporation shall conduct its business in such a manner as to be qualified to be
taxed as a real estate investment trust under the Internal Revenue Code of 1986,
as heretofore or hereafter amended.
Section 2.2. Investment Policy. It is the general purpose of the
Corporation that the assets of the Corporation be invested principally in real
property and interests in real estate, including, without limitation, loans
secured by mortgages on real estate.
ARTICLE III
Meetings of Stockholders
Section 3.1. Place. All meetings of the stockholders for the election of
directors shall be held at such place either within or without the State of
Delaware as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time or place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
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Section 3.2. Annual Meetings. The annual meetings of stockholders shall be
held on the third Thursday in May of each year at 10 o'clock A.M. of said day;
provided, however, that should said day fall upon a legal holiday, then any such
annual meeting of stockholders shall be held at the same time and place on the
next day thereafter ensuing which is a full business day. At such meetings
directors shall be elected, reports of the affairs of the Corporation shall be
considered, and any other business may be transacted which is within the powers
of the stockholders. If for any annual meeting the Board of Directors shall fix
a different day or hour, such action shall be deemed an amendment of this
Section 3.2 effective until the adjournment of that annual meeting sine die.
Written notice of each annual meeting shall be given to each stockholder
entitled to vote, either personally or by mail or other means of written
communication, charges prepaid, addressed to such stockholder at his address
appearing on the books of the Corporation or given by him to the Corporation for
the purpose of notice. If a stockholder gives no address, notice shall be deemed
to have been given him if sent by mail or other means of written communication
addressed to the place where the principal office of the Corporation is
situated, or if published at least once in some newspaper of general circulation
in the county in which said office is located. All such notices shall be sent to
each stockholder entitled thereto not less than ten nor more than sixty days
before each annual meeting. Such notices shall specify the place, the day and
the hour of such meeting and shall state such other matters if any, as may be
expressly required by statute.
Section 3.3. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes whatsoever, may be called at any time by the Board of
Directors. Except in special cases where other express provision is made by
statute, notice of such special meetings shall be given in the same manner as
for annual meetings of stockholders. Notices of any special meeting shall
specify, in addition to the place, day and hour of such meeting, the general
nature of the business to be transacted.
Section 3.4. Business To Be Brought Before Meetings. In order to be
properly brought before any meeting of stockholders held pursuant to this
Article III, business (including the election of directors) must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (b) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder. In order for any such
business to be properly brought before the meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. In order to be timely, a stockholder's notice must be received
at the principal executive offices of the Corporation not less than 60 days nor
more than 90 days prior to the meeting; provided, however, that in the event
that a meeting is called for a date other than that specified in the By-laws,
and less than 75 days' prior public disclosure of such date is given, notice by
the stockholder in order to be timely must be received by the Secretary of the
Corporation not later than the close of business on the fifteenth (15th)
calendar day following the day on which such public disclosure of the date of
the meeting was made. If a stockholder intends
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to nominate a candidate or candidates for director at any meeting of
stockholders, such stockholder's notice to the Secretary shall set forth the
name, age, address and principal occupation of each such nominee and the amount
and type of the Corporation's stock held by each such nominee, together with any
additional information reasonably necessary to determine the eligibility of each
such nominee and any information required to be disclosed in the solicitation of
proxies in respect of each such nominee by Schedule 14A, as amended from time to
time, or other applicable Rules and Regulations of the Securities and Exchange
Commission. The notice to the Secretary shall also set forth the name, address
and the amount and type of beneficial ownership of the Corporation's stock of
the stockholder intending to nominate the candidate or candidates identified in
the notice to the Secretary. Any stockholder desiring to bring any other
business before any annual meeting of stockholders shall set forth in such
stockholder's notice to the Secretary (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for conducting
such business at the meeting, (ii) the name and record address of the
stockholder proposing such business, (iii) the class and number of shares of the
Corporation's stock that are beneficially owned by such stockholder, and (iv)
any material interest of such stockholder in such business. In order to be
properly brought before any special meeting of stockholders (other than any
special meeting held for the purpose of electing directors), business must be
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors.
Notwithstanding anything in the By-laws to the contrary, no business
(including the election of directors) shall be conducted at the meeting except
in accordance with the procedures set forth in this Section 3.4; provided
however, that nothing in this Section 3.4 shall preclude or be deemed or
construed to preclude discussion by any stockholder of any business properly
brought before the annual meeting of stockholders.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Section 3.4, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
Section 3.5. List of Stockholders. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
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Section 3.6. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute. If, however,
such quorum shall not be present or represented at any meeting of stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally noticed. If the adjournment is for more than thirty
days or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 3.7. Questions Before Meeting. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting power
present in person or represented by proxy and voting, provided that such
majority is at least a majority of the number of shares required to constitute a
quorum at such meeting, shall decide any question brought before such meeting
unless the question is one upon which by express provision of the statutes, of
these By-laws or of the Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 3.8. Action Without Meeting. Any action required or permitted to
be taken by holders of stock of the Corporation must be taken at a meeting of
such holders and may not be taken by consent in writing.
Section 3.9. Waiver of Notice. Whenever notice is required to be given
under the Delaware Corporation Law or the Certificate of Incorporation or the
By-laws, a written waiver, signed by the person entitled to notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of
objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice unless so required by the Certificate
of Incorporation.
ARTICLE IV
Directors
Section 4.1. Size of Board. The Board of Directors shall consist of ten
members, or as many as shall be determined from time to time by resolution of
the Board, plus such
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additional number of directors as may from time to time be elected or appointed
in accordance with Section 4.3A hereof.
Section 4.2. Election of Directors. Except as provided in Section 4.3A
hereof, the directors shall be divided into three classes, designated Class I,
Class II, and Class III, such classes to be as nearly equal in number as
possible. Except as provided in Section 4.3A hereof, at each annual meeting of
stockholders, directors shall be chosen for a term of three years to succeed
those whose terms then expire and shall hold office until the third following
annual meeting of stockholders and until the election of their respective
successors. Directors need not be stockholders.
Section 4.3. Vacancies. Except as provided in Section 4.3A hereof,
vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, though less than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office for the unexpired term of the vacant
directorship, or, in the case of any increase in the number of directors, as
designated by the directors then in office, consistent with the provisions of
Section 4.2. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. Except as provided in Section
4.3A hereof, if, at the time of filling any vacancy or any newly created
directorship the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
No reduction of the authorized number of directors shall have the effect
of removing any director prior to the expiration of his term of office.
Section 4.3A Preferred Stock. Notwithstanding any other provisions of the
By-laws and except as otherwise required by law, whenever the holders of any one
or more series of Preferred Stock or other securities of the Corporation shall
have the right, voting separately as a class, to elect one or more directors of
the Corporation, the term of office, the filling of vacancies and other features
of such directorships shall be governed by the terms of the Certificate of
Incorporation applicable thereto, and unless the terms of the Certificate of
Incorporation expressly provide otherwise, such directorships shall be in
addition to the number of directors provided in these By-laws and such directors
shall not be classified pursuant to Article TENTH of the Certificate of
Incorporation.
Section 4.4. Powers. The business of the Corporation shall be managed by
its Board of Directors which may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these By-laws directed or required to be exercised or
done by the stockholders.
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Section 4.5. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 4.6. First Meeting. The first meeting of each newly elected Board
of Directors shall be held immediately following the annual meeting of
stockholders at which such directors are elected and no notice of such meeting
shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a quorum shall be present; or the meeting may be held at
such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the Board of Directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 4.7. Regular Meetings. Regular meetings of the Board may be held
without notice at such time and at such place as shall from time to time be
determined by the Board.
Section 4.8. Special Meetings. Special meetings of the Board may be called
by the Secretary at the request of the Chairman of the Board or President on two
business days' notice to each director, either personally or by mail, by
telegram or by telephone; special meetings shall be called by the President or
Secretary in like manner and on like notice on the written request of two
directors.
Section 4.9. Quorum. At all meetings of the Board a majority of the total
number of directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute or by the Certificate of
Incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 4.10. Conference Telephone. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, members of the Board of Directors
(or any, committee designated by the Board) may participate in a meeting of the
Board or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other.
Section 4.11. Unanimous Consent. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 4.12. Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such
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committee, to the extent provided in the resolution of the Board of Directors,
or in these By-laws, shall have and may exercise all the powers and authority
of the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders any action or matter expressly required by the
Delaware General Corporation Law to be submitted to stockholders for approval or
(ii) adopting, amending or repealing any bylaw of the Corporation. In the
absence or disqualification of any member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
such member or members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any such
absent or disqualified member. The provisions of this Section 4.12 shall be
applicable with respect to all committees, regardless of when any such committee
was first established or when the members thereof were elected or appointed.
Section 4.13. Minutes. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
Section 4.14. Fees and Compensation. Directors and members of committees
may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by resolution of the
Board.
ARTICLE V
Notices
Section 5.1. Methods of Notice. Whenever, under the provisions of the Laws
of the State of Delaware or of the Certificate of Incorporation or of these
By-laws, notice is required to be given to any director or stockholder, it shall
not be construed to mean personal notice, but notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram or
telephone.
Section 5.2. Waiver. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificates of Incorporation or of these
By-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
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ARTICLE VI
Officers
Section 6.1. Officers. The Officers of the Corporation shall be a
President, a Vice President, a Secretary and a Treasurer. The Corporation may
also have, at the discretion of the Board of Directors, one or more additional
Vice Presidents, one or more Assistant Secretaries, one or more Assistant
Treasurers, and such other officers as may be appointed in accordance with the
provisions of Section 6.3 and Section 6.5 of this Article. The Board of
Directors may also choose, in its discretion, a Chairman of the Board and one or
more Vice Chairmen of the Board. One person may hold two or more offices.
Section 6.2. Election. The officers of the Corporation, except such
officers as may be appointed in accordance with the provisions of Section 6.3 or
Section 6.5 of this Article, shall be chosen annually by the Board of Directors,
and each shall hold his office until he shall resign or shall be removed or
otherwise disqualified to serve, or his successor shall be elected and
qualified.
Section 6.3. Subordinate Officers, etc. The Board of Directors may
appoint, and may empower the President to appoint, such other officers as the
business of the Corporation may require, each of whom shall hold office for such
period, have such authority and perform such duties as are provided in the
By-laws or as the Board of Directors may from time to time determine.
Section 6.4. Removal and Resignation. Any officer may be removed, either
with or without cause, by the Board of Directors, at any regular or special
meeting thereof, or, except in the case of an officer chosen by the Board of
Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors.
Any officer may resign at any time by giving written notice to the Board
of Directors or to the President, or to the Secretary of the Corporation. Any
such resignation shall take effect at the date of the receipt of such notice or
at any later tine specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 6.5. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the By-laws for regular appointments to such office.
Section 6.6. Salaries. The salaries and other compensation of all officers
of the Corporation shall be fixed by the Board of Directors.
Section 6.7. Chairman of the Board. The Chairman of the Board shall, if
present, preside at all meetings of the Stockholders and Board of Directors, and
may be the Chief Executive Officer of the Corporation if the directors so elect.
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Section 6.7A. Vice Chairman of the Board. In the absence of the Chairman
of the Board, the Vice Chairman of the Board designated by the Board of
Directors shall preside at all meetings of the Board of Directors.
Section 6.8. President. The President shall be the Chief Executive Officer
of the Corporation unless the Chairman of the Board has been elected as Chief
Executive Officer, and shall, subject to the control of the Board of Directors
and the supervision of the Chairman of the Board, have general supervision,
direction and control of the business and officers of the Corporation. In the
absence of the Chairman of the Board and the Vice Chairman of the Board, or if
there be none, he shall preside at all meetings of the Stockholders and Board of
Directors. He shall be ex-officio a member of all the standing committees,
including the Executive Committee, if any, and shall have the general powers and
duties of management usually vested in the office of the president of a
corporation, and shall have such other powers and duties as may be prescribed by
the Board of Directors or the By-laws.
Section 6.9. Vice President. In the absence or disability of the
President, the Vice Presidents in order of their rank as fixed by the Board of
Directors or, if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
President. The Vice Presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them respectively by the
Board of Directors or the By-laws.
Section 6.10. Secretary. The Secretary shall keep or cause to be kept, at
the principal office or such other place as the Board of Directors may order, a
book of minutes of all meetings of directors and stockholders, with the time and
place of holding, whether regular or special, and, if special, how authorized,
the notice thereof given, the names of those present at directors' meetings, the
number of shares present or represented at stockholders meetings, and the
proceedings thereof. The Secretary shall keep, or cause to be kept, at the
principal office or at the office of the Corporation's transfer agent, a share
register, or a duplicate share register, showing the names of the stockholders
and their addresses, the number and class of shares held by each, the number and
date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all the meetings
of the stockholders and of the Board of Directors required by the By-laws or
by law to be given, and he shall keep the seal of the Corporation in safe
custody, and shall have such other powers and perform such other duties as may
be prescribed by the Board of Directors or by the By-laws.
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Section 6.11. Treasurer. The Treasurer shall keep and maintain, or cause
to be kept and maintained, adequate and correct accounts of the properties and
business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, surplus and
shares. Any surplus, including earned surplus, paid-in surplus and surplus
arising from a reduction of stated capital, shall be classified according to
source and shown in a separate account. The books of account shall at all
reasonable times be open to inspection by any director.
The Treasurer shall deposit all moneys and other valuables in the name and
to the credit of the Corporation with such depositories as may be designated by
the Board of Directors. He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, shall render to the President and directors,
whenever they request it, an account of all of his transactions as Treasurer and
of the financial condition of the Corporation, and shall have such other powers
and perform such other duties as may be prescribed by the Board of Directors or
the By-laws.
ARTICLE VII
Stock and Stock Certificates
Section 7.1. Right to Certificate. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by or in the name of
the Corporation, by the Chairman of the Board of Directors or the President or a
Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of the Corporation, certifying the number of shares
owned by him in the Corporation.
Section 7.2. Statements Setting Forth Rights. If the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and rights shall
be set forth in full or summarized on the face or back of the certificate which
the Corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in Section 202 of the Corporation Law of
Delaware, in lieu of the foregoing requirements, there may be set forth on the
face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, a statement that the Corporation will furnish
without charge to each stockholder who so requests the designations, preferences
and relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations and restrictions of
such preferences and rights.
Section 7.3. Facsimile Signatures. Any of or all the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the
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Corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Section 7.4. Lost Certificates. Except as hereinafter in this section
provided, no new certificate for shares shall be issued in lieu of an old one
unless the latter is surrendered and cancelled at the same time. The Board of
Directors may, however, in case any certificate for shares is lost, stolen,
mutilated or destroyed, authorize the issuance of a new certificate in lieu
thereof, upon such terms and conditions, including reasonable indemnification of
the Corporation, as the Board shall determine.
Section 7.5. Transfers of Stock.
(a) Subject to paragraphs (b), (c) and (d) of this Section 7.5, upon
surrender to any transfer agent of the Corporation of a certificate for shares
of the Corporation duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
(b) Subject to the provisions of subparagraph (vi) of this paragraph (b),
beginning at the time that (A) the merger of Santa Anita Consolidated, Inc.
("Santa Anita") into the Corporation and (B) the payment by the Corporation of
the dividend in kind of the shares of Santa Anita Operating Company, a Delaware
corporation ("Operating Company"), shall have both occurred (hereinafter called
the "effective time of the restriction"), and continuing thereafter until such
time as the limitation on transfer provided for in the Pairing Agreement between
the Corporation and Operating Company shall be terminated in the manner therein
provided:
(i) The shares of common stock of the Corporation shall not be
transferable, and shall not be transferred on the books of the
Corporation, unless (1) a simultaneous transfer is made by the same
transferor to the same transferee, or (2) such transferor has previously
arranged with Operating Company for the transfer to the transferee, of a
like number of common shares of Operating Company and such shares are
paired with one another.
(ii) Except for certificates representing shares of common stock of
this Corporation referred to in subparagraph (vi) below, each certificate
evidencing ownership of shares of common stock of this Corporation
(including certificates issued by Santa Anita) issued and not cancelled
prior to the effective time of the restriction shall be deemed to evidence
a like number of shares of common stock of Operating Company.
(iii) Except for certificates representing common stock of this
Corporation referred to in subparagraph (vi) below, any registered holder
of a certificate evidencing ownership of shares of common stock of the
Corporation (including
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certificates issued by Santa Anita) issued prior to the effective time of
the restriction may, upon request and presentation of said certificate to
the Corporation's transfer agent, obtain in substitution therefor a
certificate or certificates registered in such holder's name evidencing
the same number of shares of common stock of the Corporation and a like
number of common shares of Operating Company.
(iv) A conspicuous legend shall be placed on the face of each
certificate evidencing ownership of shares of common stock of the
Corporation issued after the effective time of the restriction, referring
to the restrictions on transfer set forth in the Corporation's By-laws.
(v) For purposes of this paragraph (b) only, the terms "common
stock" and "common shares" shall include preferred stock which is
convertible into shares of common stock.
(vi) Notwithstanding the other provisions of this paragraph (b), any
stockholder whose ownership of Operating Company common stock at the
effective time of the restriction would be deemed, after application of
the attribution rules of the Internal Revenue Code of 1954 (the "Code"),
to result in the Corporation owning, directly or indirectly, more than
9.25% of the Operating Company common stock will not be subject to the
restrictions imposed by this paragraph (b) to the extent that such
ownership would cause the Corporation, directly or indirectly, to be
deemed to own, after application of the attribution rules of the Code,
more than 9.25% of the total number of the outstanding shares of Operating
Company, provided that (1) a sufficient amount of Operating Company common
stock (or the right to receive such common stock) which would otherwise be
paired with common stock of the Corporation is sold to a transferee so
that the Corporation, directly or indirectly, after application of the
attribution rules of the Code, will not own in excess of 9.25% of the
outstanding Operating Company common stock, (2) all holders of the
unpaired shares enter into an agreement, satisfactory to the Boards of
Directors of the Corporation, Operating Company and Santa Anita, providing
that such shares not be transferable by sale or any other means, without
arranging for such shares to be paired with an equal number of shares of
Operating Company, unless such sale is made to the Corporation or
Operating Company, and (3) such stockholder executes a waiver of any
claims he or she may have arising out of the close business relationship
between the Corporation and Operating Company and claims arising out of
conflicts of interest inherent in such business relationship. The other
provisions of this paragraph (b) shall apply to all shares of the
Corporation otherwise held by any stockholder unless they are specifically
exempted by this subparagraph (vi).
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(c) If the Board of Directors shall at any time and in good faith be
of the opinion that direct or indirect ownership of shares of either
common stock or preferred stock, or both, of the Corporation has or may
become concentrated to an extent which would cause this Corporation to
fail to qualify or be disqualified as a real estate investment trust by
virtue of Section 856(a)(5) and (6) of the Code, or similar provisions of
successor statutes, the Board of Directors shall have the power (i) by lot
or other means deemed equitable by them to call for purchase from any
stockholder of the Corporation such number of shares sufficient in the
opinion of the Board of Directors to maintain or bring the direct or
indirect ownership of shares of stock of the Corporation into conformity
with the requirements of said Section 856(a)(5) and (6) and (ii) to refuse
to register the transfer of shares of stock to any person whose
acquisition of such shares would, in the opinion of the Board of
Directors, result in the Corporation being unable to conform to the
requirements of said Section 856(a)(5) and (6). The purchase price for the
shares of stock purchased pursuant hereto shall be equal to the fair
market value of such shares as reflected in the closing price for such
shares on the principal stock exchange on which such shares are listed or,
if such shares are not listed, then the last bid quotation for shares of
stock as of the close of business on the date fixed by the Board of
Directors for such purchase or, if no quotation for the shares is
available, as determined in good faith by the Board of Directors. From and
after the date fixed for purchase by the Board of Directors, the holder of
any shares so called for purchase shall cease to be entitled to dividends,
voting rights and other benefits with respect to such shares, excepting
only the right to payment of the purchase price fixed as aforesaid. In
order to further assure that ownership of the shares of stock does not
become so concentrated, any transfer of shares that would prevent the
Corporation from continuing to be qualified as a real estate investment
trust by virtue of the application of Section 856(a)(5) and (6) of the
Code shall be void ab initio and the intended transferee of such shares
shall be deemed never to have had an interest therein. If the foregoing
provision is determined to be void or invalid by virtue of any legal
decision, statute, rule or regulation, then the transferee of such shares
shall be deemed to have acted as agent on behalf of the Corporation in
acquiring such shares and to hold such shares on behalf of the
Corporation. For purposes of determining whether the Corporation is in
compliance with Section 856(a)(5) and (6), Section 542(a)2) and Section
544 of the Code, or similar provisions of successor statutes, shall be
applied.
(d) In addition to the requirements of subparagraph (c) above, if
the Board of Directors shall at any time and in good faith be of the
opinion that direct or indirect ownership of shares of either common stock
or preferred stock, or both, of the Corporation has or may become
concentrated to an extent which would cause any rent to be paid to this
Corporation to fail to qualify or be disqualified as rent from real
property by virtue of Section 856(d)(2)(B) of the Code, or similar
provisions of successor statutes, the Board of Directors shall have the
power (i) by lot or other means deemed equitable by them to call for
purchase from any stockholder of the Corporation such number of shares
sufficient in the opinion of the Board of Directors to maintain or bring
the direct or indirect ownership of shares of stock of the Corporation
into conformity with the requirements of Section 856(d)(2)(B) and (ii) to
refuse to register the transfer of shares of stock to any person whose
acquisition of such shares would, in the opinion of the Board of
Directors, result in this
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Corporation being unable to conform to the requirements of said Section
856(d)(2)(B). The purchase price for the shares of stock purchased
pursuant hereto shall be equal to the fair market value of such shares as
reflected in the closing price for such shares on the principal stock
exchange on which such shares are listed, or if such shares are not
listed, then the last bid quotation for shares of stock, as of the close
of business on the date fixed by the Board of Directors for such purchase
or, if no quotation for the shares is available, as determined in good
faith by the Board of Directors. From and after the date fixed for
purchase by the Board of Directors, the holder of any shares so called for
purchase shall cease to be entitled to dividends, voting rights and other
benefits with respect to such shares, excepting only the right to payment
of the purchase price fixed as aforesaid. In order to further assure that
ownership of the shares of stock does not become so concentrated, any
transfer of shares that would prevent this Corporation from continuing to
be qualified as a real estate investment trust by virtue of the
application of Section 856(d)(2)(B) of the Code shall be void ab initio
and the intended transferee of such shares shall be deemed never to have
had an interest therein. If the foregoing provision is determined to be
void or invalid by virtue of any legal decision, statute, rule or
regulation, then the transferee of such shares shall be deemed to have
acted as agent on behalf of the Corporation in acquiring such shares and
to hold such shares on behalf of the Corporation. For purposes of
determining whether this Corporation is in compliance with Section
856(d)(2)(B), Section 856(d)(5) of the Code, or similar provisions of
successor statutes, shall be applied.
(e) The stockholders of the Corporation shall upon demand disclose
to the Board of Directors in writing such information with respect to
their direct and indirect ownership of the stock of the Corporation as the
Board of Directors deems necessary to determine whether the Corporation
satisfies the provisions of Section 856(a)(5) and (6) and 856(d) of the
Code and the regulations thereunder as the same shall be from time to time
amended, or to comply with the requirements of any other taxing authority.
Section 7.6. Form of Consideration. In purchasing such shares from any
shareholder in accordance with the foregoing provisions, the Corporation shall
pay consideration in the form of cash or, at the option of the Board of
Directors, in the form of subordinated indebtedness of the Corporation and, if
such shares are preferred stock, the Corporation shall also pay an amount equal
to accrued and, if dividends on such preferred stock are cumulative, accumulated
dividends thereon.
Section 7.7. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereto, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
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meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 7.8. Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
Section 7.9. Transfer Agents and Registrars. The Board of Directors may
appoint one or more corporate transfer agents and registrars.
Section 7.10. Dividends. Dividends upon the capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock.
Section 7.11. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ARTICLE VIII
Indemnification and Insurance
Section 8.1. Right to Indemnification. Each person who was or is a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving 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, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
or inaction in an official capacity or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent permitted by the laws of Delaware, as the
same exist or may hereafter be amended, against all costs, charges, expenses,
liabilities and losses (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 therewith, and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the
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benefit of his or her heirs, executors and administrators; provided, however,
that, except as provided in Section 8.2 hereof, the Corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
Section 8.2. Right of Claimant to Bring Suit. If a claim under Section 8.1
of this Article is not paid in full by the Corporation within thirty 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 and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. 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 failed to meet a standard of
conduct which makes it permissible under Delaware law for the Corporation to
indemnify the claimant for the amount claimed. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is permissible in the circumstances
because he or she has met such standard of conduct, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant has not met such standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
failed to meet such standard of conduct.
Section 8.3. Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
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Section 8.4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under Delaware law.
Section 8.5. Expenses as a Witness. To the extent that any director,
officer, employee or agent of the Corporation is by reason of such position, or
a position with another entity at the request of the Corporation, a witness in
any action, suit or proceeding, he or she shall be indemnified against all costs
and expenses actually and reasonably incurred by him or her or on his or her
behalf in connection therewith.
Section 8.6. Indemnity Agreements. The Corporation may enter into
agreements with any director, officer, employee or agent of the Corporation
providing for indemnification to the full extent permitted by Delaware law.
ARTICLE IX
General Provisions
Section 9.1. Annual Reports. Not later than one hundred twenty (120) days
after the close of each fiscal year of the Corporation, the Board of Directors
shall mail a report of the business and operation of the Corporation during such
fiscal year to the stockholders. The report shall be in such form and have such
content as the Board deems proper. This report shall include a balance sheet and
a statement of income and surplus and a statement of changes in financial
position of the Corporation. Such financial statements shall be accompanied by
the report of an independent certified public accountant thereon.
Section 9.2. Quarterly Reports. Within 90 days after the close of each of
the first three quarters of each fiscal year of the Corporation, the Board of
Directors shall send interim reports to the stockholders, having such form and
content as the Board of Directors deems proper.
Section 9.3. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 9.4. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 9.5. Checks, Drafts, etc. All checks, drafts or other orders for
payment of money, notes or other evidences of indebtedness, issued in the name
of or payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by
resolution of the Board of Directors.
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Section 9.6. Representation of Shares of other Corporations. The President
or any Vice President and the Secretary or Assistant Secretary of this
Corporation are authorized to vote, represent and exercise on behalf of this
Corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of this Corporation. The authority herein
granted to said officers to vote or represent on behalf of this Corporation any
and all shares held by this Corporation in any other corporation or corporations
may be exercised either by such officers in person or by any other person
authorized so to do by proxy or power of attorney duly executed by said
officers.
Section 9.7. Employee Stock Purchase Plans. The Corporation may, upon
terms and conditions herein authorized, provide and carry out an employee stock
purchase plan or plans providing for the issue and sale, or for the granting of
options for the purchase, of its unissued shares, or of issued shares purchased
or to be purchased or acquired, to employees of the Corporation or of any
subsidiary or to a trustee on their behalf. Such plan may provide for such
consideration as may be fixed therein, for the payment of such shares in
installments or at one time and for aiding any such employees in paying for such
shares by compensation for services or by loans from the Corporation or
otherwise. Any such plan before becoming effective must be approved or
authorized by the Board of Directors of the Corporation.
Such plan may include, among other things, provisions determining or
providing for the determination by the Board of Directors, or any committee
thereof designated by the Board of Directors, of: (a) eligibility of employees
(including officers and directors) to participate therein, (b) the number and
class of shares which may be subscribed for or for which options may be granted
under the plan, (c) the time and method of payment therefor, (d) the price or
prices at which such shares shall be issued or sold, (e) whether or not title to
the shares shall be reserved to the Corporation until full payment therefor, (f)
the effect of the death of an employee participating in the plan or termination
of his employment, including whether there shall be any option or obligation on
the part of the Corporation to repurchase the shares thereupon, (g)
restrictions, if any, upon the transfer of the shares, and the time limits and
termination of the plan, (h) termination, continuation or adjustments of the
rights of participating employees upon the happening of specified contingencies,
including increase or decrease in the number of issued shares of the class
covered by the plan without receipt of consideration by the Corporation or any
exchange of shares of such class for stock or securities of another corporation
pursuant to a reorganization or merger, consolidation or dissolution of the
Corporation, (i) amendment, termination, interpretation and administration of
such plan by the Board of Directors or any committee thereof designated by the
Board of Directors, and (j) any other matters, not repugnant to law, as may be
included in the plan as approved or authorized by the Board of Directors or any
such committee.
Section 9.8 Certificate of Incorporation. As used herein, the term
"Certificate of Incorporation" shall include, without limitation, any
certificate of designations establishing the terms of any series of preferred
stock or series common stock of the Corporation.
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ARTICLE X
Amendments
Section 10.1. Power of Stockholders. New By-laws may be adopted or these
By-laws may be amended or repealed by the stockholders only by the affirmative
vote of at least 80% of the voting power of the Corporation, except as otherwise
provided by law. Any proposal to amend or repeal, or adopt any provisions
inconsistent with, Article Tenth of the Certificate of Incorporation shall
require for approval the affirmative vote of at least 80% of the voting power of
the Corporation.
Section 10.2. Power of Directors. Subject to the right of stockholders as
provided in Section 10.1 of this Article X to adopt, amend or repeal By-laws,
By-laws may be adopted, amended or repealed by the Board of Directors; provided,
however, that Section 7.5 of these By-laws may not be amended or repealed except
with approval of the holders of 80% of the outstanding common stock of the
Corporation.
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