Exhibit 3.39.2
BY-LAWS
OF
FAYETTEVILLE MOTEL ENTERPRISES, INC.
ARTICLES I - OFFICES
Section 1. Principal Office: The principal office of the corporation shall
be located at 100 S. Corcoran Street, Durham, North Carolina.
Section 2. Registered Office: The registered office of the corporation
required by law to be maintained in the State of North Carolina may
be, but need not be, identical with the principal office.
Section 3. Other Offices: The corporation may have offices at such other
place, either within or without the State of North Carolina, as the
Board of Directors may from time to time determine, or as the
affairs of the corporation may require.
ARTICLE II - MEETING OF SHAREHOLDERS
Section 1. Place of Meetings: All meetings of shareholders shall be held at
the principal office of the corporation, or at such other place,
either within or without the State of North Carolina, as shall be
designated in the notice of the meeting or agreed upon by a majority
of the shareholders entitled to vote thereat.
Section 2. Annual Meetings: The annual meetings of shareholders shall be
held at 11:00 A.M., on the First Tuesday in July of each year, if
not a legal holiday, for the purpose of electing Directors of the
corporation and for the transaction of such other business as may be
properly brought before the meeting.
Section 3. Substitute Annual Meetings: If the annual meeting shall not be
held on the day designated by these by-laws, a substitute annual
meeting may be called in accordance with the provisions of Section 4
of this article. A meeting so called shall be designated and treated
for all purposes as the annual meeting.
Section 4. Special Meetings: Special meetings of the shareholders may be
called at any time by the President, Secretary of Board of Directors
of the corporation, or by any shareholder pursuant to the written
request of the holders of not less than one-tenth of all the shares
entitled to vote at the meeting.
Section 5. Notice of Meetings: Written or printed notice stating the time
and place of the meeting shall he delivered not less than ten nor
more than fifty days before the date thereof, either personally or
by mail, by or at the direction of the President, the Secretary, or
other person calling the meeting, to each shareholder of record
entitled to vote at such meeting.
In the case of an annual or substitute annual meeting, the notice of
meeting need not specifically state the business to be transacted
thereat unless it is a matter, other than election of Directors, on
which the vote of shareholders is expressly required by the
provisions of The North Carolina Business Corporation Act. In the
case of a special meeting, the notice of meeting shall specifically
state the purpose or purposes for which the meeting is called.
When a meeting is adjourned for thirty days or more, notice of the
adjourned meeting shall he given as in the case of an original
meeting. When a meeting is adjourned for less than thirty days in
any one adjournment, it is not necessary to give any notice of the
adjourned meeting other than by announcement at the meeting at which
the adjournment is taken.
Section 6. Voting Lists: At least ten days before each meeting of
shareholders, the secretary of the corporation shall prepare an
alphabetical list of the shareholders entitled to vote at such
meetings, with the address of and the number of shares held by each,
which list shall be kept on file at the registered office of the
corporation for a period of ten days prior to such meeting, and
shall be subject to inspection by any shareholder at any time during
the usual business hours. This list shall also be produced and kept
open at the time and place of the meeting and shall be subject to
inspection by any shareholder during the whole time of the meeting.
Section 7. Quorum: The holders of a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at
meetings of shareholders. If there is no quorum at the opening of a
meeting of shareholders, such meeting may be adjourned from time to
time by the vote of a majority of the shares voting on the motion to
adjourn; and, at any adjourned meeting at which a quorum is present,
any business may be transacted which might have been transacted at
the original meeting.
The shareholders at a meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
Section 8. Voting of Shares: Each outstanding share having voting rights
shall be entitled to one vote on each matter submitted to a vote at
a meeting of shareholders.
Section 9. Informal Action by Shareholders: Any action which may be taken at
a meeting of the shareholders may be taken without a meeting if a
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consent in writing, setting forth the action so taken, shall be
signed by all of the persons who would be entitled to vote upon such
action at a meeting, and filed with the Secretary of the corporation
to be kept in the Corporate Minute Book.
ARTICLE III - DIRECTORS
Section 1. General Powers: The business and affairs of the corporation shall be
managed by the Board of Directors or by such Executive Committees as
the Board may establish pursuant to these By-Laws.
Section 2. Number, Term and Qualifications: The number of Directors of the
corporation shall be four. Each Director shall hold office until his
death, resignation, retirement, removal, disqualification, or his
successor is elected and qualifies. Directors need not be residents
of the State of North Carolina or shareholders of the corporation.
Section 3. Election of Directors: Except as provided in Section 6 of this
Article, the Directors shall be elected at the annual meeting of
shareholders; and those persons who receive the highest number of
votes shall be deemed to have been elected. If any shareholder so
demands, election of Directors shall be by ballot.
Section 4. Cumulative Voting: Every shareholder entitled to vote at an
election of Directors shall have the right to vote the number of
shares standing of record in his name for as many persons as there
are Directors to be elected and for whose election, he has a right
to vote, or to cumulate his vote by giving one candidate as many
votes as the number of such Directors multiplied by the number of
his shares shall equal, or by distributing such votes on the same
principal among any number of such candidates. This right of
cumulative voting shall not be exercised unless some shareholder or
proxy holder announces in open meeting, before the voting for the
Directors starts, his intention so to vote cumulatively; and shall
thereupon grant a recess of not less than one nor more than four
hours, as he shall determine, or of such other period of time as is
unanimously then agreed upon.
Section 5. Removal: Director, may he removed from office with or without
cause by a vote of shareholders holding a majority of the shares
entitled to vote at an election of Directors. However, unless the
entire board is removed, an individual Director may not be removed
if the number of shares voting against the removal would be
sufficient to elect a Director if such shares were voted
cumulatively at an annual election. If any Directors are a removed,
new Directors may be elected at the same meeting.
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Section 6. Vacancies: A vacancy occurring in the Board of Directors may be
filled by a majority of the remaining Directors, though less than a
quorum, or by the sole remaining Director; but a vacancy created by
an increase in the authorized number of Directors shall be filled
only by election at an annual meeting or at a special meeting of
shareholders called for that purpose. The shareholders may elect a
Director at any time to fill any vacancy not filled by the
Directors.
Section 7. Chairman: There may be a Chairman of the Board of Directors
elected by the Directors from their number at any meeting of the
Board. The Chairman shall preside at all meetings of the Board of
Directors and perform such other duties as may be directed by the
Board.
Section 8. Compensations: The Board of Directors may compensate Directors
for their services as such and may provide for the payment of all
expenses incurred by Directors in attending regular and special
meetings of the Board.
Section 9. Executive Committee: The Board of Directors may, by resolution
adopted by a majority of the number of Directors fixed by these
By-Laws, designate two or more Directors to constitute an Executive
Committee, which committee to the extent provided in such resolution
shall have and may exercise all of the authority of the Board of
Directors in the management of the corporation.
ARTICLE IV - MEETINGS OF DIRECTORS
Section 1. Regular Meetings: A regular meeting of the Board of Directors
shall be held immediately after, and at the same place as, the
annual meeting of shareholders. In addition, the Board of Directors
may provide, by resolution, the time and place, either within or
without the State of North Carolina, for the holding of additional
regular meetings.
Section 2. Special Meetings: Special meetings of the Board of Directors may
be called by or at the request of the President or any two
Directors. Such meetings may be held either within or without the
State of North Carolina.
Section 3. Notice of Meetings: Regular meetings of the Board of Directors
may be held without notice.
The person or persons calling a special meeting of the Board of
Directors shall, at least two days before the meeting, give notice
thereof by any usual means of communication. Such notice need not
specify the purpose for which the meeting is called.
Attendance by a Director at a meeting shall constitute a waiver
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of notice of such meeting, except where a Director attends a meeting
for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called.
Section 4. Quorum: A majority of the Directors fixed by these By-Laws shall
constitute a quorum for the transaction of business at any meeting
of the Board of Directors.
Section 5. Manner of Acting: Except as otherwise provided in this section,
the act of the majority of the Directors present at meeting which a
quorum is present shall be the act of the Board Directors.
The vote of a majority of the number of Directors fixed by these
By-Laws shall be required to adopt a resolution constituting an
Executive Committee. The vote of a majority of the Directors then
holding office shall be required to adopt, amend or repeal a By-Law,
or to adopt a resolution dissolving the corporation without action
by the shareholders. Vacancies in the Board of Director may be
filled as provided in Article III, Section 6, of these By-Laws.
Section 6. Informal Action by Directors: Action taken by a majority of the
Directors without a meeting is nevertheless Board action if written
consent to the action in question is signed by all the Directors and
filed with the minutes of the proceedings of the Board, whether done
before or after the action so taken.
ARTICLE V - OFFICERS
Section 1. Number: The officers of the corporation shall consist of a
President, a Secretary, a Treasurer, and such Vice-Presidents,
Assistant Secretaries, Assistant Treasurers and other officers as
the Board of Directors may from time to time elect. Any two or more
offices may be held by the same person, except the offices of
President and Secretary.
Section 2. Election and Term: The officers of the corporation shall be
elected by the Board of Directors. Such elections may be held at any
regular or special meeting of the Board. Each officer shall hold
office until his death, resignation, retirement, removal,
disqualification, or his successor is elected and qualified.
Section 3. Removal: Any officer or agent elected or appointed by the Board
of Directors may be removed by the Board with or without cause; but
such removal shall be without prejudice to the contract rights, if
any, of the person so removed.
Section 4. Compensation: The compensation of all officers of the corporation
shall be fixed by the Board of Directors.
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Section 5. President: The President shall be the principal executive officer
of the corporation, and, subject to the control of the Board of
Directors, shall supervise and control the management of the
corporation in accordance with these By-Laws.
He shall, when present, preside at all meetings of shareholders. He
shall sign, with any other proper officer, certificates for shares
of the corporation and any deeds, mortgages, bonds, contracts, or
other instruments which may be lawfully executed on behalf of the
corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and
execution thereof shall be delegated by the Board of Directors to
some other officer or agent; and, in general, he shall perform all
duties incident to the office of President and such other duties as
may be prescribed by the Board of Directors from time to time.
Section 6. Vice-Presidents: The Vice-Presidents in the order of their
election, unless otherwise determined by the Board of Directors,
shall, in the absence or disability of the President, perform the
duties and exercise the powers of that office. In addition, they
shall perform such other duties and have such other powers as the
Board of Directors shall prescribe.
Section 7. Secretary: The Secretary shall keep accurate records of the acts
and proceedings of all meetings of shareholders and Directors. He
shall give all notices required by law and by these By-Laws. He
shall have general charge of the corporate books and records and of
the corporate seal, and shall affix the corporate seal to any
lawfully executed instrument requiring it. He shall have general
charge of the stock transfer books of the corporation and shall
keep, at the registered or principal office of the corporation, a
record of shareholders showing the name and address of each
shareholder and the number and class of the shares held by each. He
shall sign such instruments as may require his signature, and, in
general, shall perform all duties incident to the office of
Secretary and such other duties as may be assigned him from time to
time by the President or by the Board of Directors.
Section 8. Treasurer: The Treasurer shall have custody of all funds and
securities belonging to the corporation and shall receive, deposit
or disburse the same under the direction of the Board of Directors.
He shall keep full and accurate accounts of the finances of the
corporation in books especially provided for that purpose; and shall
cause a true statement of its assets and liabilities as of the close
of each fiscal year at of the results of its operations and of
changes in surplus for such fiscal year, all in reasonable detail,
including particulars as to convertible securities then outstanding,
to be made and filed at the registered or principal office of the
corporation
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within four months after the end of such fiscal year. The statement
so filed shall be kept available for inspection by any shareholder
for a period of ten years; and the Treasurer shall mail or otherwise
deliver a copy of the latest such statement to any shareholder upon
his written request therefor. The Treasurer shall, in general,
perform all duties incident to his office and such other duties as
may be assigned to him from time to time by the President or by the
Board of Directors.
Section 9. Assistant Secretaries and Treasurers: The Assistant Secretaries
and Assistant Treasurers shall, in the absence or disability of the
Secretary or the Treasurer, respectively, perform the duties and
exercise the powers of those offices, and they shall, in general,
perform such other duties as shall be assigned to them by the
Secretary or the Treasurer, respectively, or by the President or the
Board of Directors.
Section 10. Bonds: The Board of Directors may by resolution require any or
all officers, agents and employees of the corporation to give bond
to the corporation, with sufficient sureties, conditioned on the
faithful performance of the duties of their respective offices or
positions, and to comply with such other conditions as may from time
to time be required by the Board of Directors.
ARTICLE VI - CONTRACTS, LOANS AND DEPOSITS
Section 1. Contracts: The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and
deliver any instrument on behalf of the corporation, and such
authority may be general or confined to specific instances.
Section 2. Loans: No loans shall be contracted on behalf of the corporation
and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority
may be general or confined to specific instances.
Section 3. Checks and Drafts: All checks, drafts or other orders for the
payment of money issued in the name of the corporation shall be
signed by such officer or officers, agent or agents of the
corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits: All funds of the corporation not otherwise employed shall
be deposited from time to time to the credit of the corporation in
such depositories as the Board of Directors shall direct.
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ARTICLE VII - CERTIFICATE FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares - Certificates representing shares of the
corporation shall be issued, in such form as the Board of Directors
shall determine, to every shareholder for the fully paid shares
owned by him. These certificates shall be signed by the President or
any Vice-President and the Secretary, Assistant Secretary, Treasurer
or Assistant Treasurer. They shall be consecutively numbered or
otherwise identified; and the name and address of the persons to
whom they are issued, with the number of shares and date of issue,
shall be entered on the stock transfer books of the corporation.
The stockholders of this corporation shall have pre-emptive rights
in the issuance of all new shares of stock in this corporation.
Before any stockholder may sell his share or shares of stock in this
corporation, or any part of them, to any person not already a
stockholder in this corporation, such stockholder shall offer such
share or shares of stock in this corporation to one or more of the
remaining stockholders at the same price which he proposes to sell
such share or shares to a person not already a stockholder of this
corporation. If such stockholder or stockholders to whom the share
or shares of stock are offered refuse to purchase, the selling
stockholder shall offer to other stockholders until all stockholders
in the corporation have had an opportunity to purchase said stock;
if none of the stockholders of this corporation elect to purchase
such share or shares of stock at the price offered, the selling
stockholder may then offer such share or shares to other persons,
but not for a price, less than that quoted to other stockholders of
this corporation; nor on more favorable terms than those offered to
other stockholders of this corporation. It is the intent of this
restriction that no stockholder shall sell his stock to a person not
already a stockholder until every holder of stock in this
corporation shall have had an opportunity to buy the stock belonging
to the selling stockholder. A statement of this limitation on the
sale of stock shall be written on each share of stock issued by this
corporation.
Section 2. Transfer of Shares: Transfer of shares shall be made on the stock
transfer books of the corporation only upon surrender of the
certificates for the shares sought to be transferred by the record
holder thereof or by his duly authorized agent, transferee or legal
representatives. All certificates surrendered for transfer shall be
cancelled before new certificates for the transferred shares shall
be issued.
Section 3. Closing Transfer Books and Fixing Record Date: For the purpose of
determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or
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entitled to receive parent of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the
Board of Directors may provide that the stock transfer books shall
he closed for a stated period but not to exceed, in any case, fifty
days. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall he closed for at least ten
days immediately preceding such meeting.
In lieu of closing the stock transfer books, the Board of Directors
may fix in advance a date as the record date for any such
determination of shareholders, such record date in any case to be
not more than fifty days, and, in case of a meeting of shareholders,
not less than ten days immediately preceding the date on which the
particular action, requiring such determination of shareholders, is
to be taken.
If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or
to vote at a meeting of shareholders, or shareholders entitled to
receive payment of a dividend, the date on which notice of the
noting is mailed or the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case may be,
shall be the record date for such determination of shareholders.
Section 4. Lost Certificates: The Board of Directors may authorize the
issuance of a new share certificate in place of certificate claimed
to have been lost or destroyed, upon receipt of an affidavit of such
fact from the person claiming the loss or destruction. When
authorizing such issuance of a new certificate, the Board may
require the claimant to give the corporation a bond in such sum as
it may direct to indemnify the corporation against loss from any
claim with respect to the certificate claimed to have been lost or
destroyed; or the Board may, by resolution reciting that the
circumstances justify such action, authorize the issuance of the new
certificate without requiring such a bond.
ARTICLE VIII - GENERAL PROVISION
Section 1. Dividends: The Board of Directors may from time to time declare,
and the corporation may pay, dividends on its outstanding shares in
the manner and upon the term and conditions provided by law and by
its charter.
Section 2. Seal: The corporate seal of the corporation shall consist of a
circular impressed seal containing the name of the corporation
around the outer area and the word "SEAL" and the year of formation
in the inner area; and such seal as impressed on the margin hereof,
is hereby adopted as the corporate seal of the corporation.
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Section 3. Waiver of Notice: Whenever any notice is required to be given to
any shareholder or Director under the provisions of the North
Carolina Business Corporation Act or under the provisions of the
charter or By-Laws of this corporation, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be equivalent to the
giving of such notice.
Section 4. Fiscal Year: Unless otherwise ordered by the Board of Directors,
the fiscal year of the corporation shall be from January 1 to
December 31.
Section 5. Amendments: Except as otherwise provided herein, these By-Laws
may be amended or repealed and new By-Laws may be adopted by the
affirmative vote of a majority of the Directors then holding office
at any regular or special meeting of the Board of Directors.
The Board of Directors shall have no power to adopt a By-Law (1)
requiring more than a majority of the voting shares for a quorum at
a meeting of shareholders or more than a majority of the votes cast
to constitute action by the shareholders, except where higher
percentages are required by law; (2) providing for the management of
the corporation otherwise than by the Board of Directors or its
Executive Committees; (3) increasing or decreasing the number of
Directors; (4) classifying and staggering the election of Directors.
No By-Law adopted or amended by the shareholders shall be altered or
repealed by the Board of Directors.
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Upon motions duly made and unanimously carried, the following Resolutions
were enacted:
RESOLVED FURTHER, That the officers of this corporation take immediate
steps to do all things necessary and proper to commence business and operations,
to carry out the purposes of this corporation as authorized by the Charter and
the Laws of the State of North Carolina, and to that end all contracts necessary
to be entered into shall be executed by the President in the name of the
corporation, and where necessary to comply with the laws of North Carolina and
otherwise where desirable or practicable, such contracts shall be sealed with
the corporate seal and attested by the Secretary of the corporation.
The President then presented to the meeting the question of taking
advantage of the provisions of Section 1244 of the Internal Revenue Code of
1954. He noted that this section permits ordinary loss treatment when either the
holder of Section 1244 stock sells or exchanges such stock at a loss or when
such stock becomes worthless. After a discussion, the following preambles were
stated and the following resolutions were unanimously adopted:
Whereas Section 1244 of the Internal Revenue Code and the Regulations
issued thereunder require that common stock of a corporation be issued pursuant
to a written plan adopted by the Corporation after June 30, 1958, which plan
must offer only such common stock during a period specified in the plan ending
not later than two years after the date the plan is adopted, and
Whereas Section 1244 and the Regulations issued thereunder further require
that the plan must specifically state, in terms of dollars, the maximum amount
to be received by the Corporation in consideration of the stock to be issued
pursuant thereto and that such stock must be issued only for money or property
(other than stock or securities), and
Whereas this Corporation qualifies as a small business corporation as
defined in Section 1244, and there is not unissued any portion of a prior
offering of any of this Corporation's stock, and
Whereas pursuant to the requirements of Section 1244 and the Regulations
issued thereunder the following plan has been submitted to the Corporation by
the Board of Directors of the Corporation:
"PLAN TO ISSUE SECTION 1244 STOCK
"1. The plan as herein set forth upon its adoption by the Board of
Directors of the Corporation shall become effective August 27, 1979.
"2. As part of this Plan, the Corporation is authorized to offer and issue
100,000 shares of common stock, par value of $1.00 per share.
"3. The Corporation shall offer and issue such 100,000 shares of common
stock from the date hereof to August 26, 1981 or to the date when the
Corporation shall make a subsequent offering of any stock, whichever shall
sooner occur.
"4. During such period as set forth in Paragraph 3, the Corporation shall
offer and issue only such common stock.
"5. The maximum amount to be received by the Corporation in consideration
of the stock to be issued pursuant to this plan shall be $1.00 per share.
"6. Such common stock shall be issued only for money and other property
(other than stock or securities).
"7. Such other action shall be taken by the Corporation as shall qualify
the stock offered and issued under this plan as 'Section 1244 stock,' as such
term is defined in the Internal Revenue Code and the Regulations issued
thereunder."
Upon motion duly made, seconded, and unanimously carried, it was
RESOLVED that the foregoing plan to issue Section 1244 stock be and the
same is hereby adopted by the Corporation.
FURTHER RESOLVED, that the proper officers of the Corporation be and they
are hereby authorized, empowered, and directed to do and perform any and all
acts and deeds necessary to carry out such plan.
RESOLVED, That pursuant to the above resolution, stock of the corporation
be issued to the following:
SERVICO, INC., a Delaware corporation, 100 shares.
There being no further business, the meeting was adjourned.
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Secretary
APPROVED:
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Director
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Director
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Director