Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
WESTCOAST HOSPITALITY CORPORATION
ARTICLE 1
OFFICES
Section 1.1 Principal Executive Office. The principal executive office (the
"Principal Office") of the Corporation shall be located at 201 W. North River
Drive, Suite 100, Spokane, Washington 99201 or such other locations as the Board
of Directors shall determine.
Section 1.2 Other Offices. The Corporation may also have offices at such other
places both within and without the State of Washington as the Board of Directors
may determine or as the business of the Corporation may require.
ARTICLE 2
MEETING OF SHAREHOLDERS
Section 2.1 Annual Meetings. The annual meeting of shareholders of the
Corporation for the election of directors and the transaction of such other
business as may be brought before the meeting in accordance with the Articles of
Incorporation and these By-Laws shall be held on the date and at the time fixed
from time to time by the Board of Directors within thirteen (13) months after
the date of the preceding annual meeting.
The annual meeting of shareholders of the Corporation shall not be called or
held otherwise than as provided in the Articles of Incorporation or in these
By-Laws.
Section 2.2 Special Meetings. Special meetings of shareholders of the
Corporation may be called only at the direction of (i) the Board of Directors by
a resolution adopted by the affirmative vote of a majority of the Board of
Directors, or (ii) the holders of not less than a majority in aggregate of the
then issued and outstanding shares of stock of the Corporation entitled to vote
thereat ("Voting Shares"), upon written request delivered to the Secretary of
the Corporation. Special meetings of shareholders of the Corporation shall not
be called or held otherwise than as provided in the Articles of Incorporation or
in these By-Laws.
Section 2.3 Place of Meeting. Meetings of the shareholders of the Corporation
shall be held at such place, either within or without the State of Washington as
the Board of Directors may determine. In the absence of any such designation,
shareholders' meetings shall be held at the Principal Office.
Section 2.4 Business Conducted at Annual Meeting.
(1) At an annual meeting of shareholders, an item of business may be
conducted, and a proposal may be considered and acted upon, only if such
item or proposal is brought before the meeting (i) by, or at the direction
of, the Board of Directors, or (ii) by any shareholder of the Corporation
who is entitled to vote at the meeting and who complies with the procedures
set forth in the remainder of this Section 2.4. This Section 2.4 shall not
apply to matters of procedure that, pursuant to Section 7.12(a) of these
By-Laws, are subject to the authority of the chairman of the meeting.
(2) For an item of business or proposal to be brought before an annual
meeting by a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered to, or mailed and received at, the
Principal Office (i) not less than one hundred twenty (120) days prior to
the first anniversary of the date that the Corporation's proxy statement
was first released to shareholders in connection with the previous year's
annual meeting; (ii) a reasonable time before the Corporation begins to
print and mail its proxy materials if the date of the current year's annual
meeting has been changed by more than thirty (30) days from the date of the
previous year's meeting; or (iii) not more than seven (7) days following
the delivery to shareholders of the notice of annual meeting with respect
to the current year's annual meeting, if the Corporation did not release a
proxy statement to shareholders in connection with the previous year's
annual meeting, or if no annual meeting was held during such year.
(3) A shareholder's notice to the Secretary under Section 2.4(2) shall set
forth, as to each item of business or proposal the shareholder intends to
bring before the meeting (i) a brief description of the item of business or
proposal and the reasons for bringing it before the meeting, (ii) the name
and address, as they appear on the Corporation's books, of the shareholder
and of any other shareholders that the shareholder knows or anticipates
will support the item of business or proposal, (iii) the number and class
of shares of stock of the Corporation that are beneficially owned on the
date of such notice by the shareholder and by any such other shareholders,
and (iv)any financial interest of the shareholder or any such other
shareholders in such item of business or proposal.
(4) The Board of Directors, or a designated committee thereof, may reject a
shareholder's notice that is not timely given in accordance with the terms
of Section 2.4(2). If the Board of Directors, or a designated committee
thereof, determines that the information provided in a timely shareholder's
notice does not satisfy the requirements of Section 2.4(3) in any material
respect, the Secretary of the Corporation shall notify the shareholder of
the deficiency in the notice. The shareholder shall have an opportunity to
cure the deficiency by providing additional information to the Secretary
within such period of time, not to exceed five (5) days from the date such
deficiency notice is given to the shareholder, as the Board of Directors or
such committee shall reasonably determine. If the deficiency is not cured
within such period, or if the Board of Directors or such committee
determines that the additional information provided by the shareholder,
together with information previously provided, does not satisfy the
requirements of Section 2.4(3c) in any material respect, then the Board of
Directors or such committee may reject the shareholder's notice.
(5) Notwithstanding the procedures set forth in Section 2.4(4), if a
shareholder desires to bring an item of business or proposal before an
annual meeting, and neither the Board of Directors nor any committee
thereof has made a prior determination of whether the shareholder has
complied with the procedures set forth in this Section 2.4 in connection
with such item of business or proposal, then the chairman of the meeting
shall determine and declare at the meeting whether the shareholder has so
complied. If the chairman determines that the shareholder has so complied,
then the chairman shall so state and ballots shall be provided for use at
the meeting with respect to such item of business or proposal. If the
chairman determines that the shareholder has not so complied, then, unless
the chairman, in his or her sole and absolute discretion, determines to
waive such compliance, the chairman shall state that the shareholder has
not so complied and the item of business or proposal shall not be brought
before the meeting.
This Section 2.4 shall not prevent the consideration and approval or disapproval
at the annual meeting of reports of officers, directors and committees of the
Board of Directors, but, in connection with such reports, no item of business
may be conducted, and no proposal may be considered and acted upon, unless there
has been compliance with the procedures set forth in this Section 2.4 in
connection therewith.
Section 2.5 Notice. Except as otherwise provided by Washington Business
Corporation Act, RCW Chapter 23B (hereafter "Act"), or unless lapse of time
shall be waived, written notice of the time, date and place of any shareholders
meeting, and, in the case or a special meeting, the purpose or purposes for
which the meeting is called, shall be given to each shareholder at least ten
(10) nor more than sixty (60) days before the date of such a meeting. If mailed,
notice is given when deposited in the United States mail, postage prepaid,
directed to the shareholder at his address as it appears on the records of the
Corporation. An affidavit of the Secretary or an Assistant Secretary or of the
transfer agent of the Corporation that the notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
Section 2.6 Quorum. At any meeting of shareholders, the holders of record,
present in person or by proxy, of a majority of the Corporation's issued and
outstanding shares of stock entitled to vote at such meeting shall constitute a
quorum for the transaction of business, except as otherwise provided by law. In
the absence of a quorum, any officer entitled to preside at or to act as
secretary of the meeting shall have power to adjourn the meeting from time to
time until a quorum is present. Once a quorum is present, shareholders may
continue to transact business at the meeting notwithstanding the withdrawal of
enough shareholders to leave less than a quorum.
Section 2.7 Voting. When a quorum is present at any meeting, action on a matter
is approved if the votes cast favoring the action exceed the votes cast opposing
the action (taking into account those voting in person or by proxy at the
meeting and entitled to vote on the subject matter unless the question is one
upon which by express provision of law or of the Articles of Incorporation or of
these By-Laws a different vote is require, and such approved action shall be the
act of the shareholders.
Section 2.8 Adjourned Meeting. Any meeting of shareholders may be adjourned from
time to time by the vote of a majority of the shares represented in person or by
proxy whether or not a quorum is present. When a shareholders' meeting is
adjourned to another time or place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact any
business which might have been transacted at the original meeting; however, if a
record date for the adjourned meeting is or must be fixed in accordance with the
Act, notice of the adjourned meeting must be given to persons who are
shareholders as of the new record date.
Section 2.9 Proxies. Every person entitled to vote for directors or any other
matter shall have the right to do so either in person or by one or more agents
authorized by a written proxy signed by the person and filed with the Secretary
of the Corporation. A proxy shall be deemed signed if the shareholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the shareholder or shareholder's attorney in fact.
A validly executed proxy which does not state that it is irrevocable shall
continue in full force and effect unless (i) revoked by the person executing it,
before the vote pursuant to that proxy executed by, or delivered to the
Corporation stating that the proxy is revoked, or by a subsequent proxy executed
by, or attendance at the meeting and voting in person by the person executing
the proxy; or (ii) written notice of the death or incapacity of the maker of
that proxy is received by the Corporation before the vote pursuant to that proxy
is counted; provided, however, that no proxy shall be valid after the expiration
of eleven (11) months from the date of the proxy, unless otherwise provided in
the proxy. The revocability of a proxy that states on its face that it is
irrevocable shall be governed by the applicable provisions of the Act.
Section 2.10 Shareholder Action by Consent. Without a meeting any action
required or permitted to be taken at any meeting of shareholders 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 voting. Prompt notice of the taking of
any such action shall be given to those shareholders who did not consent in
writing. Any such consent in writing shall be filed with the minutes of
proceedings of the shareholders. If the Act requires that notice of a proposed
action be given to non-voting shareholders and the action is to be taken by
unanimous consent of the voting shareholders, the Corporation must give its
non-voting shareholders written notice of the proposed action at least 10 days
before the action is taken. The notice must contain or be accompanied by the
same material that would have been required to be sent to the non-voting
shareholders in a notice of meeting at which the proposed action would have been
submitted to such shareholders for action.
Section 2.11 Waiver of Notice. A shareholder may waive any notice required to be
given by these By-Laws, or the Articles of Incorporation of this Corporation, or
any of the corporate laws of the State of Washington, before or after the
meeting that is the subject of such notice. A valid waiver is created by any of
the following three methods: (a) in writing, signed by the shareholder entitled
to the notice and delivered to the Corporation for inclusion in its corporate
records; (b) attendance at the meeting, unless the shareholder at the beginning
of the meeting objects to holding the meeting or transacting business at the
meeting; or (c) failure to object at the time of presentation of a matter not
within the purpose or purposes described in the meeting notice.
ARTICLE 3
DIRECTORS
Section 3.1 Powers. The Board of Directors shall be responsible for the entire
management of the business of this Corporation. In addition to the powers and
authorities by these By-Laws and the Articles of Incorporation expressly
conferred upon it, the Board of Directors may exercise all such corporate powers
and do all such lawful acts and things as are not otherwise prohibited by the
Act or by the Articles of Incorporation or by these By-Laws. The Board of
Directors may delegate the management of the day-to-day operations of the
business of the Corporation to a management company or other person, provided
that the business and affairs of the Corporation shall be managed and all
corporate power shall be exercised under the ultimate direction of the Board of
Directors.
Section 3.2 Number; Board of Directors Divided in Classes. The number of
directors of the Corporation which shall constitute the entire Board of
Directors shall be such as from time to time shall be determined by a majority
of the then authorized number of directors, but in no case shall the number be
less than 3 nor more than 13. The directors shall be classified with respect to
the time for which they severally hold office into classes, as nearly equal in
number as possible (but with not less than one director in each class), as
determined by the Board of Directors, one class to be elected for a term
expiring at the first annual meeting of shareholders to be held after its
election, another class to be elected for a term expiring at the second annual
of shareholders to be held after its election, and another class to be elected
for a term expiring at the third annual meeting of shareholders to be held after
its election, with the members of each class to hold office until their
successors have been elected and qualified. At each annual meeting of
shareholders, the successors of the members of the class of directors whose term
expires at that meeting shall be elected to hold office for a term expiring at
the annual meeting of shareholders held in the third year following the year of
their election.
Section 3.3 Nominations and Qualifications of Directors.
(1) Nominations of candidates for election as directors at an annual
meeting of shareholders may only be made (i) by, or at the direction of,
the Board of Directors or (ii) by any shareholder of the Corporation who is
entitled to vote at the meeting and who complies with the procedures set
forth in the remainder of this Section 3.3.
(2) If a shareholder proposes to nominate one or more candidates for
election as directors at an annual meeting, the shareholder must have given
timely notice thereof to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered to, or mailed and received at, the
Principal Office (i) not less than one hundred twenty (120) days prior to
the first anniversary of the date that the Corporation's proxy statement
was released to shareholders in connection with the previous year's annual
meeting; (ii) a reasonable time before the Corporation begins to print and
mail its proxy materials if the date of this year's annual meeting has been
changed by more than thirty (30) days from the date of the previous year's
meeting; or (iii) not more than seven (7) days following the delivery to
shareholders of the notice of annual meeting with respect to the current
year's annual meeting, if the Corporation did not release a proxy statement
to shareholders in connection with the previous year's annual meeting, or
if no annual meeting was held during such year.
(3) A shareholder's notice to the Secretary under Section 3.3(2) shall set
forth, as to each person whom the shareholder proposes to nominate for
election as a director (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) the number and class of shares of stock of the Corporation
that are beneficially owned on the date of such notice by such person and
(iv) if the Corporation at such time has a class of securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), any other information relating to such person
required to be disclosed in solicitations of proxies with respect to
nominees for election as directors pursuant to Regulation 14A under the
Exchange Act, including but not limited to information required to be
disclosed by Schedule 14A of Regulation 14A, and any other information that
the shareholder would be required to file with the Securities and Exchange
Commission in connection with the shareholder's nomination of such person
as a candidate for director or the shareholder's opposition to any
candidate for director nominated by, or at the direction of, the Board of
Directors. In addition to the above information, a shareholder's notice to
the Secretary under Section 3.3(2) shall (A) set forth (i) the name and
address, as they appear on the Corporation's books, of the shareholder and
of any other shareholders that the shareholder knows or anticipates will
support any candidate or candidates nominated by the shareholder and (ii)
the number and class of shares of stock of the Corporation that are
beneficially owned on the date of such notice by the shareholder and by any
such other shareholders and (B) be accompanied by a statement in the form
of a record, executed and acknowledged by each candidate nominated by the
shareholder, that the candidate agrees to be so nominated and to serve as a
director of the Corporation if elected at the annual meeting.
(4) The Board of Directors, or a designated committee thereof, may reject
any shareholder's nomination of one or more candidates for election as
directors if the nomination is not made pursuant to a shareholder's notice
timely given in accordance with the terms of Section 3.3(2). If the Board
of Directors, or a designated committee thereof, determines that the
information provided in a shareholder's notice does not satisfy the
requirements of Section 3.3(3) in any material respect, the Secretary of
the Corporation shall notify the shareholder of the deficiency in the
notice. The shareholder shall have an opportunity to cure the deficiency by
providing additional information to the Secretary within such period of
time, not to exceed five (5) days from the date such deficiency notice is
given to the shareholder, as the Board of Directors or such committee shall
reasonably determine. If the deficiency is not cured within such period, or
if the Board of Directors or such committee determines that the additional
information provided by the shareholder, together with information
previously provided, does not satisfy the requirements of Section 3.3(3) in
any material respect, then the Board of Directors or such committee may
reject the shareholder's notice.
(5) Notwithstanding the procedures set forth in Section 3.3(4), if a
shareholder proposes to nominate one or more candidates for election as
directors at an annual meeting, and neither the Board of Directors nor any
committee thereof has made a prior determination of whether the shareholder
has complied with the procedures set forth in this Section 3.3 in
connection with such nomination, then the chairman of the annual meeting
shall determine and declare at the annual meeting whether the shareholder
has so complied. If the chairman determines that the shareholder has so
complied, then the chairman shall so state and ballots shall be provided
for use at the meeting with respect to such nomination. If the chairman
determines that the shareholder has not so complied, then, unless the
chairman, in his or her sole and absolute discretion, determines to waive
such compliance, the chairman shall state that the shareholder has not so
complied and the defective nomination shall be disregard.
(6) All directors of the Corporation shall be at least twenty-one years of
age. Directors need not be shareholders or residents of the State of
Washington. At each meeting of shareholders for the election of directors
at which a quorum is present, the persons receiving a plurality of the
votes cast shall be elected directors.
Section 3.4 Meetings.
(1) Regular meetings of the Board of Directors shall be held at such times
and places as may from time to time be fixed by the Board of Directors or
as may be specified in a notice of meeting. Special meetings of the Board
of Directors may be held at any time upon the call of the Chairman of the
Board, the President, the Vice President or two or more directors. Oral or
written notice of each special meeting of the Board of Directors, stating
the time and place of the meeting, shall (i) be given to each director not
less than two days before such meeting or (ii) be delivered to the director
personally by facsimile or by telephoning not less than one (1) day before
the meeting. A meeting of the Board of Directors may be held without notice
immediately after the annual meeting of the shareholders. Notice need not
be given of regular meetings of the Board of Directors.
(2) Members of the Board of Directors or any committee designated by the
Board of Directors may participate in a meeting through use of conference
telephone or similar communications equipment, so long as all members
participating in such meeting can hear each other. Such participation
constitutes presence in person at such meeting.
(3) Whenever notice is required to be given to any director pursuant to the
Act, the Corporation's Articles of Incorporation or these By-Laws, a
written waiver thereof, signed by such director, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance
of a director at a meeting shall constitute a waiver of notice of such
meeting except when the director attends the 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. All
such waivers, consents and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Section 3.5 Quorum. A majority of the total number of directors shall constitute
a quorum for the transaction of business. If a quorum is not present at any
meeting of the Board of Directors, the directors present may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
such a quorum is present. Except as otherwise provided by the Act, the Articles
of Incorporation of the Corporation, these By-Laws or any contract or agreement
to which the Corporation is a party, 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. A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any action
taken is approved by at least a majority of the required quorum for such
meeting. Any meeting of the Board of Directors may be adjourned and continued at
a later time, including a meeting at which a quorum is not present.
Notwithstanding Section 4 of this Article, notice of the adjourned meeting or of
the business to be transacted therein, other than by announcement at the meeting
of which the adjournment is taken, shall not be necessary. At any adjourned
meeting at which a quorum is present, any business may be transacted which could
have been transacted at the meeting as originally called. Section 3.6 Committees
of Directors. The Board of Directors may, by resolution adopted by a majority of
the full Board of Directors, designate from among its members an Executive
Committee and one or more other committees, each of which, to the extent
provided in such resolution, shall have and may exercise all the authority of
the Board of Directors, except no such committee shall have the authority to (a)
authorize or approve a distribution except according to a general formula or
method prescribed by the Board of Directors; (b) approve or propose to
shareholders action which the corporate law requires to be approved by
shareholders; (c) fill vacancies on the Board of Directors or on any of its
committees; (d) amend Articles of Incorporation; (e) adopt, amend, or repeal
By-Laws; (f) approve a plan of merger not requiring shareholder approval; or (g)
authorize or approve the issuance or sale or contract for sale of shares, or
determine the designation and relative rights, preferences, and limitations on a
class or series of shares, except that the Board of Directors may authorize a
committee, or a senior executive officer of the Corporation, to do so within
limits specifically prescribed by the Board of Directors. At such time as the
stock of the Corporation may be publicly traded upon any exchange, there shall
be an Audit Committee of one or more independent directors and a Compensation
Committee of one or more independent directors.
Section 3.7 Action Without Meeting. Any action required or permitted to be taken
at any meeting of the Board of Directors or any committee thereof may be taken
without a meeting if all members of the Board of Directors or any committee, as
the case may be, consent in writing to such action and the writing or writings
are filed with the minutes or proceedings of the Board of Directors or
committee, as the case may be.
Section 3.8 Fees and Compensation. Directors and members of committees may
receive such compensation, if any, for their services, and such reimbursement of
expenses, as may be fixed or determined by resolution of the Board of Directors.
No such payment shall preclude any director from serving this Corporation in any
other capacity and receiving compensation therefor.
Section 3.9 Vacancies. Except as otherwise provided in these By-Laws, newly
created directorships resulting from any increases in the number of directors
and any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of a majority of the remaining directors then in office, even if such majority
is less than a quorum of the Board of Directors, or by a sole remaining
director. The term of office of any director so elected by the directors to fill
a vacancy resulting from an increase in the number of directors or otherwise
shall expire at the next meeting of shareholders at which directors are elected.
The term of office of any director elected by the shareholders to succeed a
director elected by the other directors (or to fill a vacancy on the Board of
Directors which had not been filled by the vote of such other directors) shall
expire at the annual meeting of shareholders at which the term of the class of
which such director is a member shall expire. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
Section 3.10 Resignation of Directors. Any director may resign at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein, and if no time be specified, shall take effect at the time of its
receipt by the Chairman, the Chief Executive Officer or the Secretary of the
Corporation. The acceptance of a resignation shall not be necessary to make it
effective. No resignation shall discharge any accrued obligation or duty of a
director.
Section 3.11 Removal of Directors. A duly elected director of the Corporation
may be removed from such position, with or without cause, only by the
affirmative vote of the holders of a majority of the shares entitled to vote in
the election of such director as provided in the Articles of Incorporation.
Section 3.12 Chairman. The Board of Directors may select one of its members to
be Chairman. The Chairman shall have such powers and perform such duties which
are commonly associated with the office of Chairman, including, presiding at
meetings of the Board of Directors and at shareholder meetings. The Chairman
shall also have such powers and perform such duties as are set forth in these
By-Laws and as may from time to time be assigned to him by the Board of
Directors.
Section 3.13 Vice Chairman of the Board. The Vice-Chairman of the Board, if
there be any, shall be a member of the Board of Directors and shall have such
powers and perform such duties as may from time to time be assigned to him or
her by the Board of Directors.
Section 3.14 Interested Directors and Officers.
(1) Contracts and Transactions. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are also
directors or officers, or have a financial interest, shall be void or
voidable solely for such reason, or solely because the director or officer
is present at or participates in the meeting of the Board of Directors
which authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose, if:
(a) Disclosure to Board. The material facts as to his interest and as
to the contract or transaction are disclosed or known to the Board of
Directors and the Board of Directors in good faith authorizes the
contract or transaction by a vote sufficient for such purpose without
counting the vote of the interested director or directors, even though
the disinterested directors be less than a quorum; or
(b) Disclosure to Shareholders. The material facts as to his interest
and as to the contract or transaction are disclosed or are known to
the shareholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by a vote of the
shareholders; or
(c) Fairness. The contract or transaction is fair to the Corporation
as of the time it is authorized, approved, or ratified, by the Board
of Directors or the shareholders.
(3) Quorum. Interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors which authorizes a
contract or transaction in the preceding section.
Section 3.15 Presumption of Assent. A director of this Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless:
(a) the director objects at the beginning of the meeting, or promptly upon the
director's arrival, to the holding of the meeting or transacting business at the
meeting; (b) the director's dissent or abstention from the action taken is
entered in the minutes of the meeting; or (c) the director shall file written
dissent or abstention with the presiding officer of the meeting before such
adjournment or to the Corporation within a reasonable time after the adjournment
of the meeting. Such right to dissent shall not apply to a director who voted in
favor of such action.
ARTICLE 4
OFFICERS
Section 4.1 Officers. The officers of the Corporation shall consist of a
President, a Secretary, a Chief Financial Officer (Treasurer) and such other
additional officers with such titles as the Board of Directors shall determine,
all of whom shall be chosen by and shall serve at the pleasure of the Board of
Directors. Any number of offices may be held by the same person. Such officers
shall have the usual powers and shall perform all the usual duties incident to
their respective offices. All officers shall be subject to the supervision and
direction of the Board of Directors. The authority, duties or responsibilities
of any officer of the Corporation may be suspended by the President with or
without cause. Any officer elected or appointed by the Board of Directors may be
removed by the Board of Directors with or without cause. No officer need be a
shareholder of this Corporation.
Section 4.2 Other Officers. The Board of Directors, at its discretion, may
appoint, or empower the President to appoint, one or more Vice Presidents, one
or more Assistant Secretaries, one or more Assistant Treasurers, or 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 the Board
of Directors or the President may from time to time determine.
Section 4.3 Removal. 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 (subject,
in each case, to the rights, if any, of an officer under an employment
contract).
Section 4.4 Resignation. Any officer may resign at any time by giving written
notice to the Board of Directors, the President, or to the Secretary of the
Corporation without prejudice to the rights, if any, of the Corporation under
any contract to which the officer is a party. Any such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 4.5 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed in these By-Laws for regular appointments to such office.
Section 4.6 Salaries. The salaries, if any, of the officers shall be fixed from
time to time by the Board of Directors or the committee of the Board designated
for that purpose. No officers shall be prevented from receiving such salary by
reason of the fact that said officer is also a director of this Corporation.
ARTICLE 5
INDEMNIFICATION
Section 5.1 Indemnification Rights. To the fullest extent permitted by the Act,
as the same may be amended and supplemented, the Corporation shall indemnify
each current or former director or officer of the Corporation from and against
any and all expenses, liabilities or other matters referred to in or covered by
the Act, including, without limitation, by reason of his current or former
position with the Corporation or by reason of the fact that he is or was
serving, at the request of the Corporation, as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise.
Section 5.2 Nonexclusivity. The indemnification provided for herein shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any By-Law, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and 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 person. Except as
may otherwise be specifically provided in these By-Laws, no provision of these
By-Laws is intended by the Corporation to be construed as limiting, prohibiting,
denying or abrogating any of the general or specific powers or rights conferred
under the Act upon the Corporation, upon its shareholders, bondholders and
security holders, and upon its directors, officers, employees or agents,
including in particular the power of the Corporation to furnish indemnification
to directors, officers, employees and agents in the capacities defined and
prescribed by the Act and prescribed rights of said persons to indemnification
as the same are conferred by the Act.
Section 5.3 Advancement of Expenses. The rights granted herein shall include the
right to be paid by the Corporation the expenses incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of such expenses shall be made only upon delivery to the Corporation of
an undertaking, by or on behalf of such director, officer, employee or agent, to
repay all amounts so advanced if it shall ultimately be determined that such
director, officer, employee or agent is not entitled to indemnification.
ARTICLE 6
SHARES AND SHAREHOLDERS
Section 6.1 Share Certificates.
(1) The Corporation may issue a certificate or certificates representing
shares of its stock. No shares of this Corporation shall be issued unless
authorized by the Board or a committee of the Board. Such authorization
shall include the maximum number of shares to be issued, the consideration
to be received, and a statement that the Board considers the consideration
to be adequate. Certificates for shares of the Corporation shall be in such
form as is consistent with the provisions of the Act and shall state: 1)
The name of the Corporation and that the Corporation is organized under the
laws of the State of Washington; 2)The name of the person to whom issued;
and 3) The number and class of shares and the designation of the series, if
any, which such certificate represents. Any or all of the signatures on the
certificate may be a facsimile. The Board of Directors may appoint one or
more transfer agents and registrars for its stock of any class or classes
and may require stock certificates to be countersigned and registered by
one or more of the transfer agents and registrars. 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 of registrar before such certificate is issued, such
certificate may be issued by the Corporation with the same effect as if
such person were an officer, transfer agent or registrar at the date of
issue. The Corporation shall be entitled to issue shares of its capital
stock without certificates representing such shares if the Board of
Directors of the Corporation shall so resolve.
(2) There shall be set forth on the face or back of a certificate which the
Corporation may issue to represent a class or series of stock one of the
following: (1) a statement of the powers, 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/or rights, or (2) a summary of the statement
described in subsection 1.B.(1) above. If a security of the Corporation is
subject to a restriction on the transfer or registration thereof, such
restriction shall be noted, in writing, conspicuously upon the certificate
representing the security.
(3) The Corporation may, but shall not be required to, issue certificates
representing a fraction of a share and, in this event, the holder thereof
shall have all the rights appurtenant to ownership of that interest in the
Corporation. If the Corporation elects not to issue certificates
representing a fraction of a share to the persons entitled thereto, it
shall, at its election, either:
(4) Arrange for disposition of the fractional interest by those entitled
thereto.
(5) Pay in cash the fair value of fractions of a share as of the time when
those entitled to receive such fractions are determined.
(6) Issue scrip or warrants in registered or bearer which entitles the
holder to receive a full share upon surrender of such scrip or warrants
aggregating one or more full shares, which scrip or warrants may, if the
Board of Directors elects, either become (i) void if not so surrendered on
or before a specified date, or (ii) subject to such other conditions or
limitations as may be designated by the Board of Directors.
Section 6.2 Transfer of Certificates. Where a certificate for shares is
presented to the Corporation or its transfer clerk or transfer agent with a
request to register a transfer of shares, the Corporation is under a duty to
register the transfer, cancel the certificate presented, and issue a new
certificate if: (a) the certificate is endorsed or the instructions were
originated by the appropriate person or persons; (b) reasonable assurance is
given that those endorsements or instructions are genuine and effective; (c) the
Corporation has no duty to inquire into adverse claims or has discharged any
such duty; (d) any applicable law relating to the collection of taxes has been
complied with; and (e) reasonable assurance is given that the transfer is in
fact rightful or is to a bona fide purchaser.
Section 6.3 Lost Certificates. Where a certificate is alleged to have been lost,
destroyed or wrongfully taken, the Corporation shall issue a new certificate in
place of the original if the owner: (a) so requests, in writing, before the
Corporation has notice that the certificate has been acquired by a bona fide
purchaser; and (b) if so requested by the Board of Directors, gives the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, destruction or wrongful taking of
such certificate or the issuance of such new certificate. Except as provided
above, no new certificate for shares shall be issued in lieu of an old
certificate unless the Corporation is ordered to do so by a court judgment in an
action brought in a court of appropriate jurisdiction.
Section 6.4 Registration of Shares. The Corporation shall recognize the person
or persons registered in its stock ledger as the exclusive owner and holder of
the shares registered in his name and as the "shareholder" for all purposes
herein with the exclusive rights inter alia to vote the shares, to receive
dividends declared with respect to the shares, to transfer the shares to others,
and to exercise any other rights of shareholders. The Corporation shall have no
obligation to recognize any equitable or other claim or interest in any shares
on the part of any person or persons other than the registered owner, as set
forth in the stock ledger, whether or not the Corporation shall have any notice
thereof, except as may otherwise be provided by the laws of the State of
Washington. "Shares" for the purposes hereof, shall mean shares of the
Corporation's stock authorized by its Articles of Incorporation and registered
in the stock ledger as issued and outstanding, including any one or more classes
of stock so authorized and whether or not such share is deemed to have voting or
other privileges. It is the duty of every shareholder to notify this Corporation
of the shareholder's post office address.
Section 6.5 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 entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the Board of
Directors may fix in advance a record date for any such determination of
shareholders, such date in any case to be not more than seventy (70) days and,
in case of a meeting of shareholders, not less than ten (10) days prior to the
date on which the particular action, requiring such determination of
shareholders, is to be taken. If 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 meeting 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. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof unless the Board of Directors fixes a new record date for the adjourned
meeting.
Section 6.6 Voting Record. The officer or agent having charge of the stock
transfer books for shares of this Corporation shall make at least ten (10) days
before each meeting of shareholders a complete record of the shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each.
Such record shall be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any shareholder during the whole time
of the meeting for the purposes thereof.
ARTICLE 7
GENERAL PROVISIONS
Section 7.1 Notices. Whenever any statute, the Articles of Incorporation or
these By-Laws requires notice to be given to any director or shareholder, such
notice may be given in writing by mail, addressed to such director or
shareholder at his address as it appears on the records of the Corporation, with
postage thereon prepaid. Such notices shall be deemed to have been given when it
is deposited in the United States mail. Notice to directors may also be given by
facsimile or telephone.
Section 7.2 Dividends and Reserves. The Board of Directors, from time to time,
may determine whether any, and, if any, what part, of its net assets in excess
of its capital available therefor pursuant to applicable law and the Articles of
Incorporation shall be declared by it as dividends on the stock of the
Corporation. The Board of Directors, in its discretion, in lieu of declaring any
such dividend, may use and apply any of such net profits or net assets as a
reserve for working capital, to meet contingencies, for the purpose of
maintaining or increasing the property or business of the Corporation or for any
other lawful purpose which it may think conducive to the best interests of the
Corporation.
Section 7.3 Seal. The corporate seal of the Corporation shall be in the form of
a circle and shall bear the name of the Corporation and the year and state of
its incorporation.
Section 7.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the Board of Directors.
Section 7.5 Record Date; Books and Records.
(1) The Board of Directors may fix, in advance, a record date for the
determination of the shareholders entitled to notice of and to vote at any
meeting of shareholders, to receive any report, to receive any dividend or
distribution, or any allotment of rights, or to exercise rights in respect
to any change, conversion, or exchange of shares.
(2) The Corporation shall keep adequate and correct books and records of
account and shall keep minutes of the proceedings of its shareholders,
Board of Directors and committees of the Board of Directors and shall keep
at its Principal Office or at the office of its transfer agent or
registrar, a record of its shareholders, giving the names and addresses of
all shareholders and the number and class of shares held by each. Such
minutes shall be kept in written form. Such other books and records shall
be kept either in written form or in any other form capable of being
converted into written form.
Section 7.6 Check, 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.
Section 7.7 Authority to Execute Contracts. The Board of Directors may authorize
any officer or officers, agent or agents, to enter into any contract or execute
any instrument in the name of and on behalf of the Corporation, subject to the
applicable laws of the State of Washington. Such authority may be general or
confined to specific instances and, unless so authorized by the Board of
Directors, no officer, agent or employee shall have any power or authority to
bind the Corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or to any amount.
Section 7.8 Representation of Shares of Other Corporations. The President or any
Vice President and the Secretary or any 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 7.9 Construction and Definitions. Unless the context otherwise requires,
the general provisions, rules of construction and definitions contained in the
Act shall govern the construction of these By-Laws. Without limiting the
generality of the foregoing, the masculine gender includes the feminine and
neuter, the singular number includes the plural and the plural number includes
the singular, and the term "person" includes a corporation as well as a natural
person.
Section 7.10 Books and Records. The Corporation shall keep as permanent records
minutes of all meetings of its shareholders and Board of Directors, a record of
all actions taken by the shareholders or Board of Directors without a meeting,
and a record of all actions taken by a committee of the Board of Directors
exercising the authority of the Board of Directors on behalf of the Corporation;
shall maintain appropriate accounting records; and the Corporation or its agent
shall maintain a record of its shareholders, in a form that permits preparation
of a list of the names and addresses of all shareholders, in alphabetical order
by class of shares showing the number and class of shares held by each; and
shall keep a copy of the following records at its Principal Office:
(1) The Articles or Restated Articles of Incorporation and all amendments
to them currently in effect;
(2) The By-Laws or Restated By-Laws and all amendments to them currently in
effect;
(3) The minutes of all shareholders' meetings, and records of all actions
taken by shareholders without a meeting, for the past three (3) years;
(4) Its financial statements for the past three (3) years, including
balance sheets showing in reasonable detail the financial condition of the
Corporation as of the close of each fiscal year, and an income statement
showing the results of its operations during each fiscal year prepared on
the basis of generally accepted accounting principles or, if not, prepared
on a basis explained therein;
(5) All written communications to shareholders generally within the past
three (3) years;
(6) A list of the names and business addresses of its current directors and
officers; and
(7) Its most recent annual report delivered to the Corporations Division of
the State of Washington.
Section 7.11 Financial Statements. Not later than four (4) months after the
close of its fiscal year, and in any event prior to the annual meeting of
shareholders, the Corporation shall prepare a balance sheet and income statement
as of the close of the fiscal year. Upon written request, the Corporation shall
mail to any shareholder a copy of the most recent balance sheet and income
statement. If the annual financial statements are reported upon by a public
accountant, the accountant's report must accompany them. If not, the statements
must be accompanied by the statement required by Washington law, which is signed
by the President or a person responsible for the Corporation's accounting
records.
Section 7.12 Rules of Order. The rules contained in the most recent edition of
Robert's Rules of Order, Revised, shall govern all meetings of shareholders and
directors where those rules are not inconsistent with the Articles of
Incorporation or these By-Laws, subject to the following:
(a) The chairman of the meeting shall have absolute authority over matters
of procedure, and there shall be no appeal from the ruling of the chairman.
If the chairman in his or her absolute discretion deems it advisable to
dispense with the rules of parliamentary procedure for any meeting or any
part thereof, the chairman shall so state and shall clearly state the rules
under which the meeting or appropriate part thereof shall be conducted.
(b) If disorder should arise which prevents continuation of the legitimate
business of the meeting, or if the chairman should otherwise determine that
it is desirable to do so, the chairman may quit the chair and announce the
adjournment of the meeting. Upon so doing, the meeting shall be deemed
immediately adjourned, subject to being reconvened in accordance with
Section 2.8 of these By-Laws.
(c) The chairman may ask or require that anyone not a bona fide shareholder
or proxy leave the meeting of shareholders.
(d) Without limiting the requirements of Section 2.4 and Section 3.3 of
these By-Laws, a resolution or motion at a meeting of shareholders shall be
considered for vote only if proposed by a shareholder or duly authorized
proxy and seconded by an individual who is a shareholder or duly authorized
proxy other than the individual who proposed the resolution or motion.
ARTICLE 8
AMENDMENTS
Subject to any limitations imposed by law or the Articles of Incorporation these
By-Laws may be altered, amended, supplemented or repealed, or new By-Laws may be
adopted, (a) at any annual or special meeting of the shareholders by affirmative
vote of all shareholders or (b) at any regular or special meeting of the Board
of Directors by affirmative vote of a majority of the Board of Directors. In
either case, notice of the proposed amendment must be given in the Notice of the
meeting.
The undersigned, being the Secretary of WestCoast Hospitality Corporation,
hereby certifies that the foregoing Amended and Restated By-Laws were adopted by
the Board of Directors of the Corporation effective February 20, 2003.
/S/__Richard L. Barbieri____________
Richard L. Barbieri, Secretary