EXHIBIT 3.2
BY-LAWS
OF
AMERIHOST PROPERTIES, INC.
(a Delaware corporation)
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. 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
MEETING OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election
of directors shall be held in the City of Des Plaines, State of Illinois, at
such place as may be fixed from time to time by the Board of Directors, or at
such other 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 meeting. Meetings of stockholders for any other purposes may be held at such
time and 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.
Section 2. Annual meetings of stockholders, commencing with
the year 1989, shall be held on the first Tuesday in August, 1989, if not a
legal holiday, and if a legal holiday, then on the next secular day following,
at 10:00 A.M., or at such other date and time as shall be designated from time
to time by the Board of Directors and stated in the notice of the meeting, at
which they shall elect by plurality vote a Board of Directors, and transact such
other business as may properly by brought before the meeting.
Section 3. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten nor more than sixty days before the
date of the meeting.
Section 4. 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, showing the address of each stockholder and the number of shares
registered in the name 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.
Section 5. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the president and shall be called
by the Chairman of the Board of Directors, president or secretary at the request
in writing of the Chairman of the Board of Directors or a majority of the Board
of Directors, or at the request in writing of the stockholders owning a majority
in amount of the entire capital stock of the corporation issued and outstanding
and entitled to vote. Such request shall state the purpose or purposes of the
proposed meeting.
Section 6. Written notice of a special meeting stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten nor more than sixty days
before the date of meeting, to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. 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 at otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the 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
notified. 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 9. 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 shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes 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 10. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
Section 11. Unless otherwise provided in the Certificate of
Incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the
whole Board shall be not less than five nor more than eleven. The exact number
of directors shall be determined by resolution of the Board of Directors or by
the stockholders at the annual meeting. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his successor is
elected and qualified. Directors need not be stockholders.
Section 2. The number of directors may be increased by
amendment of these By-laws by the affirmative vote of a majority of the
directors, though less than a quorum, or, by the affirmative vote of a majority
in interest of the stockholders, at the annual meeting or at a special meeting
called for that purpose, and by like vote the additional directors may be chosen
at such meeting to hold office until the next annual election and until their
successors are elected and qualify.
Section 3. 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 until the
next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by statute. 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.
Section 4. The business of the corporation shall be managed by
or under the direction of 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.
Section 4.5. [ADOPTED 10/22/2002] The Board of Directors may appoint a Director
to serve as Chairman of the Board. The Chairman of the Board shall not be an
officer of the Corporation, unless specifically designated as an officer by the
Board of Directors. The Chairman of the Board shall, if present, preside at all
meetings of the stockholders, of the Board of Directors, and of the Executive
Committee, if any, and shall designate the acting secretary for such meetings to
take the minutes thereof, for delivery to the Secretary. The Chairman of the
Board shall have such other powers, authority and duties as may be determined by
the Board of Directors. The Chairman of the Board shall be elected by, and may
be removed at any time (with or without cause) by, the affirmative vote of a
majority of the Board of Directors.
MEETINGS OF THE BOARD OF DIRECTORS
Section 5. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 6. The first meeting of each newly elected Board of
Directors shall follow the annual stockholders' meeting or shall be held at such
other time as the Board of Directors shall decide 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. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected Board of Directors, or in the event such meeting is not held at the time
and place so fixed by the stockholders, 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 7. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as shall from time to time be
determined by the Board.
Section 8. Special meetings of the Board of Directors may be
called by the Chairman of the Board or President on two days notice to each
director, which notice does not have to specify the purpose of the meeting,
either personally, by mail, by telegram or by facsimile; special meetings shall
be called by the Chairman of the Board or President or Secretary in like manner
and on like notice on the written request of two directors unless the Board
consists of only one director; in which case, special meetings shall be called
by the President or Secretary in like manner and on like notice on the written
request of the sole director.
Section 9. At all meetings of the Board, a majority of the
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 11. 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 12. 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 of Directors, or any committee, may
participate in a meeting of the Board of Directors or any committee, by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 12. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board may designate one of more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee.
Any such committee, to the extent provided in the resolution of the Board of
Directors, 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 amending the Certificate of Incorporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors.
Section 13. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 14. Unless otherwise restricted by the Certificate of
Incorporation or these by-laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
REMOVAL OF DIRECTORS
Section 15. Unless otherwise restricted by the Certificate of
Incorporation or by law, (i) any director or the entire Board of Directors may
be removed, with or without cause, by the holders of a majority or shares
entitled to vote at an election of directors, and (ii) any director may be
removed for cause by a majority of the directors then in office. A director may
be removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes 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 such 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.
Section 2. Whenever any notice is required to be given under
the provisions of the statutes or of the Certificate 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.
ARTICLE V
OFFICERS
Section 1. [ADOPTED 10/22/2002] The officers of the
corporation shall be chosen by the Board of Directors. The Board of Directors
may appoint a president, one or more executive vice-presidents, one or more
vice-presidents, a secretary and a treasurer. Any number of offices may be held
by the same person, unless the Certificate of Incorporation or these By-Laws
otherwise provide.
Section 2. [ADOPTED 10/22/2002] [Reserved]
Section 3. [ADOPTED 10/22/2002] The Board of Directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board.
Section 4. [ADOPTED 10/22/2002] The salaries of all officers
of the corporation shall be fixed by the Board of Directors or a Committee of
the Board of Directors or their designee.
Section 5. [ADOPTED 10/22/2002] The officers of the
corporation shall hold office until their successors are chosen and qualify. Any
officer elected or appointed by the Board of Directors may be removed at any
time without cause and without notice by the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the corporation
shall be filled by the Board of Directors.
Section 6. [ADOPTED 10/22/2002] [Reserved]
Section 7. [ADOPTED 10/22/2002] The President. Unless the
Board of Directors determines otherwise, the President shall report to the Board
of Directors and shall be the chief executive officer of the corporation and on
a day to day basis shall, subject to the direction of the Board of Directors, be
in charge of (i)the active management of the business, property, operations and
affairs of the corporation, (ii)the direction and supervision of the other
officers. The President shall also assume an active role in planning and policy
making for the corporation and such other duties as the Board of Directors may
assign to him from time to time. The President may sign, with the Secretary, any
Assistant Secretary, Treasurer or any Assistant Treasurer, certificates for
shares of the corporation, and may sign any policies, contracts, deeds,
mortgages, bonds, or other instruments which the Board of Directors have
authorized to be executed, except in those cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
By-Laws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed; appoint and discharge agents and
employees of the corporation and, in general, shall perform all duties incident
to the office of president. The President shall be responsible for ensuring that
all orders and resolutions of the Board of Directors are carried out and shall
make such reports on the affairs of the Company as the Board of Directors may
from time to time require.
THE EXECUTIVE VICE PRESIDENT
Section 8. The Executive Vice President shall assist the
Chairman of the Board and the President in the discharge of their duties as they
may direct and shall perform such other duties as from time to time may be
assigned by the Board of Directors. The Executive Vice President shall assist
the President in the direction and supervision of other officers and in
corporate planning and policy making. In the absence of the President or in the
event of his inability or refusal to act, the Executive Vice President shall
perform the duties of the President, and when so acting, shall have the powers
of and be subject to all the restrictions upon the President. Except in those
instances in which the authority to execute is expressly delegated to another
officer or agent of the corporation or a different mode of execution is
expressly prescribed by the Board of Directors or these By-Laws, the Executive
Vice President may execute for the corporation certificates for its shares and
any policies, contracts, deeds, mortgages, bonds or other instruments which the
Board of Directors has authorized to be executed, and he may accomplish such
execution either under or without the seal of the corporation and either
individually or with the Secretary, any Assistant Secretary, or any other
officer thereunto authorized by the Board of Directors, according to the
requirements of the form of the instrument.
THE VICE PRESIDENTS
Section 9. The Vice President (or in the event there be more
than one Vice President, each of the Vice Presidents) shall assist the Chairman
of the Board, the President and the Executive Vice President in the discharge of
their duties as they may direct and shall perform such other duties as from time
to time may be assigned by the Chairman of the Board, the President and the
Executive Vice President or by the Board of Directors. In the absence of the
President, the Executive Vice President and the Chairman of the Board or in the
event of their inability or refusal to act, the Vice President (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Board of Directors, or by the President if the Board of
Directors has not made such a designation, or in the absence of any designation,
then in the order of seniority of tenure as vice president) shall perform the
duties of the President, and when so acting, shall have the powers of and be
subject to all the restrictions upon the President. Solely in those instances in
which the authority to execute is expressly delegated to the Vice President (or
each of them if there are more than one), the Vice President (or each of them if
there are more than one) may execute for the corporation any policies,
contracts, deeds, mortgages, bonds or other instruments which the Board of
Directors has authorized to be executed, and he may accomplish such execution
either under or without the seal of the corporation and either individually or
with the Secretary, any Assistant Secretary, or any other officer thereunto
authorized by the Board of Directors, according to the requirements of the form
of the instrument.
THE TREASURER
Section 10. The Treasurer shall be the principal accounting
and chief financial officer of the corporation. He shall: (a) have charge of and
be responsible for the maintenance of adequate books of account for the
corporation; (b) have charge and custody of all funds and securities of the
corporation, and be responsible therefor and for the receipt and disbursement
thereof; and (c) perform all the duties incident to the office of treasurer and
such other duties as from time to time may be assigned to him by the Chairman of
the Board, the President or by the Board of Directors. If required by the Board
of Directors, the Treasurer shall, at the corporation's expense, give a bond for
the faithful discharge of his duties in such sum and with such surety or
sureties as the Board of Directors may determine.
THE SECRETARY
Section 11. The Secretary shall: (a) record the minutes of the
stockholders' and of the Board of Directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these By-Laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation; (d) keep a register of
the post office address of each stockholder which shall be furnished to the
Secretary by such stockholder; (e) sign with the President or the Executive Vice
President, or any other officer thereunto authorized by the Board of Directors,
certificates for shares of the corporation, the issue of which shall have been
authorized by the Board of Directors, and any policies, contracts, deeds,
mortgages, bonds or other instruments which the Board of Directors has
authorized to be executed, according to the requirements of the form of the
instrument, except when a different mode of execution is expressly prescribed by
the Board of Directors or these By-Laws; (f) have general charge of the stock
transfer books of the corporation; (g) perform all duties incident to the office
of Secretary and such other duties as from time to time may be assigned to him
by the President or by the Board of Directors.
VICE CHAIRMAN, ASSISTANT VICE PRESIDENTS, ASSISTANT TREASURERS,
AND ASSISTANT SECRETARIES
Section 12. The Vice Chairman, Assistant Vice Presidents,
Assistant Treasurers, and Assistant Secretaries shall perform such duties as
shall be assigned to them by the Chairman of the Board of Directors, the
Executive Vice President, Vice Presidents, Treasurer or the Secretary,
respectively, or by the President or the Board of Directors. The Assistant
Secretaries may sign with the Chairman of the Board of Directors, the President,
the Executive Vice President, or a Vice President, or any other officer
thereunto authorized by the Board of Directors, certificates for shares of the
corporation, the issue of which shall have been authorized by the Board of
Directors, and any contracts, deeds, mortgages, bonds or other instruments which
the Board of Directors has authorized to be executed, according to the
requirements of the form of the instrument, except when a different mode of
execution is expressly prescribed by the Board of Directors or these By-Laws.
The Assistant Treasurers shall, if required by the Board of Directors and at the
corporation's expense, give bonds for the faithful discharge of their duties in
such sums and with such sureties as the Board of Directors shall determine.
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. 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 the Executive Vice
President or any other officer thereunto authorized by the Board of Directors
and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the corporation, certifying the number of shared owned by him in
the corporation.
Section 2. Any of or all the signatures on the certificate may
be 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 corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The Board of Directors or the transfer agent may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors or the transfer agent may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate of certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the other certificate and record the
transaction upon its books.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, 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 Director 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
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.
REGISTERED STOCKHOLDERS
Section 6. 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 to hold liable for calls and
assessments a person registered on its books as the owner of shares, 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.
ARTICLE VII
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GENERAL PROVISIONS
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DIVIDENDS
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Section 1. Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation, if
any, 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, subject to the provisions of the Certificate of
Incorporation.
Section 2. 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.
CHECKS
Section 3. All checks or demand for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed
by resolution of the Board of Directors.
SEAL
Section 5. 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.
INDEMNIFCATION
Section 7. The corporation shall indemnify and advance its
officers, directors, employees and agents to the fullest extent permitted by the
General Corporation Law of Delaware, as amended (the "Act"), provided, however,
the indemnification and advancement of expenses provided by or granted pursuant
to the Act shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in his or her official capacity and as to action in
any other capacity while holding such office. The indemnification and
advancement of expenses shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE VIII
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AMENDMENTS
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Section 1. These by-laws may be altered, amended or repealed
or new by-laws may be adopted by the stockholders or by the Board of Directors,
when such power is conferred upon the Board of Directors by the Certificate of
Incorporation at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if, in the event of a stockholders' meeting, notice of such
alteration, amendment, repeal or adoption of new by-laws be contained in the
notice of such special meeting. If the power to adopt, amend or repeal by-laws
is conferred upon the Board of Directors by the Certificate of Incorporation, it
shall not divest or limit the power of the stockholders to adopt, amend or
repeal by-laws.
AMENDMENT TO BYLAWS OF
ARLINGTON HOSPITALITY, INC.
ADOPTED BY THE BOARD OF DIRECTORS ON JUNE 27, 2002
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CORPORATE GOVERNANCE PROVISIONS
1. At least two-thirds of the members of the board of directors (the "Board")
shall be independent. For purposes of any action of the Board, at least one-half
of the directors present and eligible to vote must be independent.
An independent director means a person who:
(a) has not been an employee of the Company or any of its subsidiaries for
the previous three years;
(b) is not affiliated with a significant customer or supplier of the
Company ("significant" means more than 1% of annual sales);
(c) is not employed by an entity and has not had, during the past two
years, any interest in any significant transaction with the Company
and/or any executive officer, or any business or financial
relationship with the Company and/or any executive officer, or an
affiliate of the Company (other than service as a director) for which
the Company has been required to make disclosure under Regulation S-K
of the Securities and Exchange Commission;
(d) is not a relative of an executive officer or director of the Company;
(e) receives no compensation from the Company other than director's fees;
(f) does not personally receive and is not an employee, director, or
trustee of a foundation, university, or other institution that
receives grants or endowments from the Company that are material to
the Company or to either the recipient and/or the foundation,
university or institution; or,
(g) is not employed by an entity of which (i) an executive officer of the
Company serves as a director or trustee, or (ii) a director of the
Company serves in a senior executive capacity.
2. There shall be an Audit Committee of the Board, composed entirely of
independent directors, which shall oversee the Company's financial reporting
process and internal controls, review compliance with laws and accounting
standards, recommend the appointment of public accountants, and provide a direct
channel of communication to the Board for public accountants, internal auditors
and finance officers. This Committee will be required to meet at least four
times per year.
3. There shall be a Compensation Committee of the Board, composed entirely of
independent directors, which shall be responsible for (a) ensuring that senior
management will be accountable to the Board through the effective application of
compensation policies, and (b) monitoring the effectiveness of senior
management. The Compensation Committee shall establish compensation policies
applicable to the Company's executive officers. A fair summary of such policies
and the relationship of corporate performance to executive compensation,
including the factors and criteria upon which the Chief Executive Officer's
compensation was based, shall be disclosed to shareholders in the Company's
proxy statement for the annual meeting. This Committee will be required to meet
at least two times per year and conduct written reviews of at least the CEO and
the CFO (with respect to Board performance).
4. There shall be a Corporate Governance Committee of the Board, composed
entirely of independent directors, which shall be responsible for:
I. Reviewing all related-party transactions involving the Company,
and considering and making recommendations to the full Board with
respect to all proposals involving (a) a change in control, or (b) the
purchase or sale of assets constituting more than 10% of the Company's
total assets. Additionally, this Committee shall be responsible for
reviewing all transactions or proposed transactions that trigger the
Company's shareholders' rights plan, if any. The Committee will then
make a recommendation to the full Board.
II. Evaluation and nomination of all new prospective Board
members. Any interested party should be directed to this Committee for
evaluation and review. This Committee will then recommend to the full
Board for their approval any nominee to serve as a Director of the
Company.
III. Review all disclosed related party transactions between Board
members. Any Board member that desires to do business with
any other Board member must first submit to this Committee a
detailed plan of the proposed business dealing. This
Committee will be responsible to analyze the proposed
business dealing, explain it to the full Board and make a
recommendation to the full Board.
IV. Create the format to review each of the Board members. The
reviews will be conducted on a yearly basis in accordance
with the format that this committee designs. The results of
the reviews will be distributed to all Board members for
their review and consideration.
This Committee will be required to meet at least four times per year. Any
existing Board member, excluding management of the Company, will be deemed
to be independent until December 31, 2004, at which time they must qualify
under these provisions.
5. The foregoing provisions are adopted as part of the Bylaws of the Company and
cannot be amended or repealed without either (a) approval by the stockholders of
the Company, or (b) approval by a two-thirds majority of all the directors of
the Company. Any inconsistent provisions of the Bylaws are hereby modified to be
consistent with these provisions. The foregoing provisions, insofar as they
establish eligibility to serve as a director or as a committee member, shall not
have the effect of removing any director or committee member from office but
shall be given effect at the next election of directors and the next selection
of committee members, as the case may be. The foregoing provisions shall not be
construed to limit or restrict the effective exercise of statutory cumulative
voting rights by any shareholder, but the Corporate Governance Committee shall
not nominate candidates for election to the Board except as may be consistent
with such provisions, and no corporate funds may be expended for the
solicitation of proxies which are inconsistent with the foregoing provisions.
[END]