Exhibit 3.5
COLONY RIH ACQUISITIONS, INC.
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
BY-LAWS
ARTICLE I.
OFFICES.
The registered office of Colony RIH Acquisitions, Inc. (the
"Corporation") shall be located in the state of Delaware and shall be at such
address as shall be set forth in the Certificate of Incorporation. The
registered agent of the Corporation at such address shall be as set forth in the
Certificate of Incorporation. The Corporation may also have such other offices
at such other places, within or without the State of Delaware, as the Board of
Directors may from time to time designate or the business of the Corporation may
require.
ARTICLE II.
STOCKHOLDERS.
Section 1. Annual Meeting. The annual meeting of stockholders for the
election of directors and the transaction of any other business shall be held on
such date and at such time and in such place, either within or without the State
of Delaware, as shall from time to time be designated by the Board of Directors.
At the annual meeting any business may be transacted and any corporate action
may be taken, whether stated in the notice of meeting or not, except as
otherwise expressly provided by statute or the Certificate of Incorporation.
Section 2. Special Meetings. Special meetings of the stockholders for
any purpose may be called at any time by the Board of Directors, or by the
President, and shall be called by the President at the request of the holders of
at least 20% of the outstanding shares of capital stock entitled to vote.
Special meetings shall be held at such place or places within or without the
State of Delaware as shall from time to time be designated by the Board of
Directors. At a special meeting no business shall be transacted and no corporate
action shall be taken other than that stated in the notice of the meeting.
Section 3. Notice of Meetings. Written notice of the time and place of
any stockholder's meeting, whether annual or special, shall be given to each
stockholder entitled to vote thereat, by personal delivery or by mailing the
same to him at his address as the same appears upon the records of the
Corporation at least ten (10) days but not more than sixty (60) days before the
day of the meeting. Notice of any adjourned meeting need not be given except by
announcement at the meeting so adjourned, unless otherwise ordered in connection
with such adjournment. Such further notice, if any, shall be given as may be
required by law.
Section 4. Quorum. Any number of stockholders, together holding at
least a majority of the capital stock of the Corporation issued and outstanding
and entitled to vote, who shall be
present in person or represented by proxy at any meeting duly called, shall
constitute a quorum for the transaction of all business, except as otherwise
provided by law, by the Certificate of Incorporation or by these By-laws.
Section 5. Adjournment of Meetings. If less than a quorum shall attend
at the time for which a meeting shall have been called, the meeting may adjourn
from time to time by a majority vote of the stockholders present or represented
by proxy and entitled to vote without notice other than by announcement at the
meeting until a quorum shall attend. Any meeting at which a quorum is present
may also be adjourned in like manner and for such time or upon such call as may
be determined by a majority vote of the stockholders present or represented by
proxy and entitled to vote. At any adjourned meeting at which a quorum shall be
present, any business may be transacted and any corporate action may be taken
which might have been transacted at the meeting as originally called.
Section 6. Voting List. The Secretary shall prepare and make, at least
ten (10) days before every election of directors, a complete list of the
stockholders entitled to vote, arranged in alphabetical order and showing the
address of each stockholder and the number of shares of each stockholder. Such
list shall be open at the place where the election is to be held for said ten
(10) days, to the examination of any stockholder, and shall be produced and kept
at the time and place of election during the whole time thereof, and subject to
the inspection of any stockholder who may be present.
Section 7. Voting. Each stockholder entitled to vote at any meeting may
vote either in person or by proxy, but no proxy shall be voted on or after three
years from its date, unless said proxy provides for a longer period. Except as
otherwise provided by the Certificate of Incorporation, each stockholder
entitled to vote shall at every meeting of the stockholders be entitled to one
vote for each share of stock registered in his name on the record of
stockholders. At all meetings of stockholders all matters, except as otherwise
provided by statute, shall be determined by the affirmative vote of the majority
of shares present in person or by proxy and entitled to vote on the subject
matter. Voting at meetings of stockholders need not be by written ballot.
Section 8. Record Date of Stockholders. The Board of Directors is
authorized to fix in advance a date not exceeding sixty (60) days nor less than
ten (10) days preceding the date of any meeting of stockholders, or the date for
the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining the consent of stockholders for
any purposes, as a record date for the determination of the stockholders
entitled to notice of, and to vote at, any such meeting, and any adjournment
thereof, or entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, or to give such consent, and, in such
case, such stockholders and only such stockholders as shall be stockholders of
record on the date so fixed shall be entitled to such notice of, and to vote at,
such meeting, and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, or
to give such consent, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation, after such record date fixed as
aforesaid.
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Section 9. Action Without Meeting. Any action required or permitted to
be taken at any annual or special meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent or consents 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 and shall be delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. 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.
Section 10. Conduct of Meetings. The Chairman of the Board of
Directors, or if there be none, or in the Chairman's absence, the President
shall preside at all regular or special meetings of stockholders. To the maximum
extent permitted by law, such presiding person shall have the power to set
procedural rules, including but not limited to rules respecting the time
allotted to stockholders to speak, governing all aspects of the conduct of such
meetings.
ARTICLE III.
DIRECTORS.
Section 1. Number and Qualifications: The board of directors shall
consist initially of such number of directors as is set forth in the Statement
of the Sole Incorporator, and thereafter shall consist of such number as may be
fixed from time to time by resolution of the Board. The directors need not be
stockholders.
Section 2. Election of Directors: The directors shall be elected by the
stockholders at the annual meeting of stockholders.
Section 3. Duration of Office: The directors chosen at any annual
meeting shall, except as hereinafter provided, hold office until the next annual
election and until their successors are elected and qualify.
Section 4. Removal and Resignation of Directors: Except as set forth in
the Certificate of Incorporation of the Corporation, as such certificate may be
amended by any Certificates of Designation filed by the Corporation, any
director may be removed from the Board of Directors, with or without cause, by
the holders of a majority of the shares of capital stock entitled to vote,
either by written consent or consents or at any special meeting of the
stockholders called for that purpose, and the office of such director shall
forthwith become vacant.
Any director may resign at any time. Such resignation shall take effect
at the time specified therein, and if no time be specified, at the time of its
receipt by the President or Secretary. The acceptance of a resignation shall not
be necessary to make it effective, unless so specified therein.
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Section 5. Filling of Vacancies: Any vacancy among the directors,
occurring from any cause whatsoever, may be filled by a majority of the
remaining directors, though less than a quorum, provided, however, that the
stockholders removing any director may at the same meeting fill the vacancy
caused by such removal, and provided further, that if the directors fail to fill
any such vacancy, the stockholders may at any special meeting called for that
purpose fill such vacancy. In case of any increase in the number of directors,
the additional directors may be elected by the directors in office before such
increase.
Any person elected to fill a vacancy shall hold office, subject to the
right of removal as hereinbefore provided, until the next annual election and
until his successor is elected and qualifies.
Section 6. Regular Meetings: The Board of Directors shall hold an
annual meeting for the purpose of organization and the transaction of any
business immediately after the annual meeting of the stockholders, provided a
quorum of directors is present. Other regular meetings may be held at such times
as may be determined from time to time by resolution of the Board of Directors.
Section 7. Special Meetings: Special meetings of the Board of Directors
may be called by the Chairman of the Board of Directors, if any, or by the
President or by any two directors.
Section 8. Notice and Place of Meetings: Meetings of the Board of
Directors may be held at the principal office of the Corporation, or at such
other place as shall be stated in the notice of such meeting. Notice of any
special meeting, and, except as the Board of Directors may otherwise determine
by resolution, notice of any regular meeting also, shall be mailed to each
director addressed to him at his residence or usual place of business at least
two (2) days before the day on which the meeting is to be held, or if sent to
him at such place by facsimile, telegraph or cable, or delivered personally or
by telephone, not later than the day before the day on which the meeting is to
be held. No notice of the annual meeting of the Board of Directors shall be
required if it is held immediately after the annual meeting of the stockholders
and if a quorum is present.
Section 9. Business Transacted at Meetings, etc.: Any business may be
transacted and any corporate action may be taken at any regular or special
meeting of the Board of Directors at which a quorum shall be present, whether
such business or proposed action be stated in the notice of such meeting or not,
unless special notice of such business or proposed action shall be required by
statute.
Section 10. Quorum: A majority of the Board of Directors at any time in
office shall constitute a quorum. At any meeting at which a quorum is present,
the vote of a majority of the members present shall be the act of the Board of
Directors unless the act of a greater number is specifically required by law or
by the Certificate of Incorporation or these By-laws. In the event of a
deadlock, the vote of the Chairman of the Board of Directors shall govern. The
members of the Board shall act only as the Board and the individual members
thereof shall not have any powers as such.
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Section 11. Compensation: The directors shall not receive any stated
salary for their services as directors, but by resolution of the Board of
Directors a fixed fee and expenses of attendance may be allowed for attendance
at each meeting. Nothing herein contained shall preclude any director from
serving the Corporation in any other capacity, as an officer, agent or
otherwise, and receiving compensation therefor.
Section 12. Action Without a Meeting: 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 the proceedings of the Board or
committee.
Section 13. Meetings Through Use of Communications Equipment: Members
of the Board of Directors, or any committee designated by the Board of
Directors, shall, except as otherwise provided by law, the Certificate of
Incorporation or these By-laws, have the power to participate in a meeting of
the Board of Directors, or any committee, by means of a conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation shall constitute
presence in person at the meeting.
ARTICLE IV.
COMMITTEES.
Section 1. Executive Committee: The Board of Directors may, by
resolution passed by a majority of the whole Board, designate two or more of
their number to constitute an Executive Committee to hold office at the pleasure
of the Board, which Committee shall, during the intervals between meetings of
the Board of Directors, have and exercise all of the powers of the Board of
Directors in the management of the business and affairs of the Corporation,
subject only to such restrictions or limitations as the Board of Directors may
from time to time specify, or as limited by the Delaware Corporation Law, and
shall have power to authorize the seal of the Corporation to be affixed to all
papers which may require it.
Any member of the Executive Committee may be removed at any time, with
or without cause, by a resolution of a majority of the whole Board of Directors.
Any person ceasing to be a director shall ipso facto cease to be a
member of the Executive Committee.
Any vacancy in the Executive Committee occurring from any cause
whatsoever may be filled from among the directors by a resolution of a majority
of the whole Board of Directors.
Section 2. Other Committees: Other committees, whose members need not
be directors, may be appointed by the Board of Directors or the Executive
Committee, which committees shall hold office for such time and have such powers
and perform such duties as may from time to time be assigned to them by the
Board of Directors or the Executive Committee.
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Any member of such a committee may be removed at any time, with or
without cause, by the Board of Directors or the Executive Committee. Any vacancy
in a committee occurring from any cause whatsoever may be filled by the Board of
Directors or the Executive Committee.
Section 3. Resignation: Any member of a committee may resign at any
time. Such resignation shall be made in writing and shall take effect at the
time specified therein, or, if no time be specified, at the time of its receipt
by the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective unless so specified therein.
Section 4. Quorum: A majority of the members of a committee shall
constitute a quorum. The act of a majority of the members of a committee present
at any meeting at which a quorum is present shall be the act of such committee.
The members of a committee shall act only as a committee, and the individual
members thereof shall not have any powers as such.
Section 5. Record of Proceedings, etc.: Each committee shall keep a
record of its acts and proceedings, and shall report the same to the Board of
Directors when and as required by the Board of Directors.
Section 6. Organization, Meetings, Notices, etc.: A committee may hold
its meetings at the principal office of the Corporation, or at any other place
which a majority of the committee may at any time agreed upon. Each committee
may make such rules as it may deem expedient for the regulation and carrying on
of its meetings and proceedings. Unless otherwise ordered by the Executive
Committee, any notice of a meeting of such committee may be given by the
Secretary of the Corporation or by the chairman of the committee and shall be
sufficiently given if mailed to each member at his residence or usual place of
business at least two (2) days before the day on which the meeting is to be
held, or if sent to him at such place by facsimile, telegraph or cable, or
delivered personally or by telephone not later than twenty-four (24) hours
before the time at which the meeting is to be held.
Section 7. Compensation: The members of any committee shall be entitled
to such compensation as may be allowed them by resolution of the Board of
Directors.
ARTICLE V.
OFFICERS.
Section 1. Number: The officers of the Corporation shall be a President
and a Secretary and such other officers as may be appointed in accordance with
the provisions of this Article V. The Board of Directors in its discretion may
also elect a Chairman of the Board of Directors.
Section 2. Election, Term of Office and Qualifications: The officers,
except as provided in Section 3 of this Article V, shall be chosen annually by
the Board of Directors. Each such officer shall, except as herein otherwise
provided, hold office until his successor shall have been chosen and shall
qualify. The Chairman of the Board of Directors, if any, and the President shall
be directors of the Corporation, and should any one of them cease to be a
director, he shall ipso facto cease to be such officer. Except as otherwise
provided by law, any number of offices may be held by the same person.
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Section 3. Other Officers: Other officers, including one or more
vice-presidents, assistant secretaries, treasurer or assistant treasurers, may
from time to time be appointed by the Board of Directors, which other officers
shall have such powers and perform such duties as may be assigned to them by the
Board of Directors or the officer or committee appointing them.
Section 4. Removal of Officers: Any officer of the Corporation may be
removed from office, with or without cause, by a vote of a majority of the Board
of Directors.
Section 5. Resignation: Any officer of the Corporation may resign at
any time. Such resignation shall be in writing and shall take effect at the time
specified therein, and if no time be specified, at the time of its receipt by
the President or Secretary. The acceptance of a resignation shall not be
necessary in order to make it effective, unless so specified therein.
Section 6. Filling of Vacancies: A vacancy in any office shall be
filled by the Board of Directors or by the authority appointing the predecessor
in such office.
Section 7. Compensation: The compensation of the officers shall be
fixed by the Board of Directors, or by any committee upon whom power in that
regard may be conferred by the Board of Directors.
Section 8. Chairman of the Board of Directors: The Chairman of the
Board of Directors, if any, shall be a director and shall preside at all
meetings of the stockholders and the Board of Directors, and shall have such
power and perform such duties as may from time to time be assigned to him by the
Board of Directors.
Section 9. President: In the absence of the Chairman of the Board of
Directors, or if there be none, the President shall preside at all meetings of
the stockholders and the Board of Directors. He shall have power to call special
meetings of the stockholders or of the Board of Directors or of the Executive
Committee at any time. He shall be the chief executive officer of the
Corporation, and shall have the general direction of the business, affairs and
property of the Corporation, and of its several officers, and shall have and
exercise all such powers and discharge such duties as usually pertain to the
office of President.
Section 10. Vice-Presidents: The vice-president, or vice-presidents if
there is more than one, shall, subject to the direction of the Board of
Directors, at the request of the President or in his absence, or in case of his
inability to perform his duties from any cause, perform the duties of the
President, and, when so acting, shall have all the powers of, and be subject to
all restrictions upon, the President. The vice-presidents shall also perform
such other duties as may be assigned to them by the Board of Directors, and the
Board of Directors may determine the order of priority among them.
Section 11. Secretary: The Secretary shall perform such duties as are
incident to the office of Secretary, or as may from time to time be assigned to
him by the Board of Directors, or as are prescribed by these By-laws.
Section 12. Treasurer: The Treasurer shall perform such duties and have
powers as are usually incident to the office of Treasurer or which may be
assigned to him by the Board of Directors.
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ARTICLE VI.
CAPITAL STOCK.
Section 1. Issue of Certificates of Stock: Certificates of capital
stock shall be in such form as shall be approved by the Board of Directors. They
shall be numbered in the order of their issue and shall be signed by the
Chairman of the Board of Directors, the President or one of the vice-presidents,
and the Secretary or an assistant secretary or the treasurer or an assistant
treasurer, and the seal of the Corporation or a facsimile thereof shall be
impressed or affixed or reproduced thereon, provided, however, that where such
certificates are signed by a transfer agent or an assistant transfer agent or by
a transfer clerk acting on behalf of the Corporation and a registrar, the
signature of any such Chairman of the Board of Directors, President,
vice-president, Secretary, assistant secretary, treasurer or assistant treasurer
may be facsimile. In case any officer or officers who shall have signed, or
whose facsimile signature or signatures shall have been used on any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates, or whose facsimile signature or signatures shall
have been used thereon have not ceased to be such officer or officers of the
Corporation.
Section 2. Registration and Transfer of Shares: The name of each person
owning a share of the capital stock of the Corporation shall be entered on the
books of the Corporation together with the number of shares held by him, the
numbers of the certificates covering such shares and the dates of issue of such
certificates. The shares of stock of the Corporation shall be transferable on
the books of the Corporation by the holders thereof in person, or by their duly
authorized attorneys or legal representatives, on surrender and cancellation of
certificates for a like number of shares, accompanied by an assignment or power
of transfer endorsed thereon or attached thereto, duly executed, and with such
proof of the authenticity of the signature as the Corporation or its agents may
reasonably require. A record shall be made of each transfer.
The Board of Directors may make other and further rules and regulations
concerning the transfer and registration of certificates for stock and may
appoint a transfer agent or registrar or both and may require all certificates
of stock to bear the signature of either or both.
Section 3. Lost, Destroyed and Mutilated Certificates: The holder of
any stock of the Corporation shall immediately notify the Corporation of any
loss, theft, destruction or mutilation of the certificates therefor. The
Corporation may issue a new certificate of stock in the place of any certificate
theretofore issued by it alleged to have been lost, stolen or destroyed, and the
Board of Directors may, in its discretion, require the owner of the lost, stolen
or destroyed certificate, or his legal representatives, to give the Corporation
a bond, in such sum not exceeding double the value of the stock and with such
surety or sureties as they may require, to indemnify it against any claim that
may be made against it by reason of the issue of such new certificate and
against all other liability in the premises, or may remit such owner to such
remedy or remedies as he may have under the laws of the State of Delaware.
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ARTICLE VII.
DIVIDENDS, SURPLUS, ETC.
Section 1. General Discretion of Directors: The Board of Directors
shall have power to fix and vary the amount to be set aside or reserved as
working capital of the Corporation, or as reserves, or for other proper purposes
of the Corporation, and, subject to the requirements of the Certificate of
Incorporation, to determine whether any, if any, part of the surplus or net
profits of the Corporation shall be declared as dividends and paid to the
stockholders, and to fix the date or dates for the payment of dividends.
ARTICLE VIII.
MISCELLANEOUS PROVISIONS.
Section 1. Fiscal Year: The fiscal year of the Corporation shall
commence on the first day of January and end on the last day of December.
Section 2. Corporate Seal: The corporate seal shall be in such form as
approved by the Board of Directors and may be altered at their pleasure. The
corporate seal may be used by causing it or a facsimile thereof to be impressed
or affixed or reproduced or otherwise.
Section 3. Notices: Except as otherwise expressly provided, any notice
required by these By-laws to be given shall be sufficient if given by depositing
the same in a post office or letter box in a sealed postpaid wrapper addressed
to the person entitled thereto at his address, as the same appears upon the
books of the Corporation, or by sending via facsimile, telegraphing or cabling
the same to such person at such addresses; and such notice shall be deemed to be
given at the time it is mailed, sent via facsimile, telegraphed or cabled.
Section 4. Waiver of Notice: Any stockholder or director may at any
time, by writing or by telegraph or by cable, waive any notice required to be
given under these By-laws, and if any stockholder or director shall be present
at any meeting his presence shall constitute a waiver of such notice.
Section 5. Checks, Drafts, etc.: All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness 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
designated by resolution of the Board of Directors.
Section 6. Deposits: All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such bank or banks, trust
companies or other depositories as the Board of Directors may select, and, for
the purpose of such deposit, checks, drafts, warrants and other orders for the
payment of money which are payable to the order of the Corporation, may be
endorsed for deposit, assigned and delivered by any officer of the Corporation,
or by such agents of the Corporation as the Board of Directors or the President
may authorize for that purpose.
Section 7. Voting Stock of Other Corporations: Except as otherwise
ordered by the Board of Directors or the Executive Committee, the President or
the treasurer shall have full power and authority on behalf of the Corporation
to attend and to act and to vote at any meeting
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of the stockholders of any corporation of which the Corporation is a stockholder
and to execute a proxy to any other person to represent the Corporation at any
such meeting, and at any such meeting the President or the treasurer or the
holder of any such proxy, as the case may be, shall possess and may exercise any
and all rights and powers incident to ownership of such stock and which, as
owner thereof, the Corporation might have possessed and exercised if present.
The Board of Directors or the Executive Committee may from time to time confer
like powers upon any other person or persons.
Section 8. Indemnification of Officers and Directors: The Corporation
shall indemnify any and all of its directors or officers, including former
directors or officers, and any employee, who shall serve as an officer or
director of any corporation at the request of this Corporation, to the fullest
extent permitted under and in accordance with the laws of the State of Delaware.
ARTICLE IX.
AMENDMENTS.
The Board of Directors shall have the power to make, rescind,
alter, amend and repeal these By-laws, provided, however, that the stockholders
shall have power to rescind, alter, amend or repeal any by-laws made by the
Board of Directors, and to enact by-laws which if so expressed shall not be
rescinded, altered, amended or repealed by the Board of Directors. No change of
the time or place for the annual meeting of the stockholders for the election of
directors shall be made except in accordance with the laws of the State of
Delaware.
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