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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CANDLEWOOD HOTEL COMPANY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 48-1188025
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
LAKEPOINT OFFICE PARK
9342 EAST CENTRAL
WICHITA, KANSAS 67206
(Address of principal executive offices) (Zip Code)
If this Form relates to the If this Form relates to the registration of a
registration of a class of class of debt securities and is to become
debt securities and is effective simultaneously with the
effective upon filing pursuant effectiveness of a concurrent registration
to General Instruction A(c)(1) statement under the Securities Act of 1933
please check the following pursuant to General Instruction A(c)(2)
box. / / please check the following box. / /
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
- ------------------- ------------------------------
None None
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.01 PAR VALUE
(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
This registration statement relates to the registration with
the Securities and Exchange Commission of shares of Common Stock, $.01 par value
per share (the "Common Stock"), of Candlewood Hotel Company, Inc., a Delaware
corporation (the "Registrant"). The description of the Common Stock to be
registered hereunder set forth under the caption "Description of Capital Stock"
in the Registrant's preliminary prospectus dated September 13, 1996 (the
"Prospectus"), included in its Registration Statement on Form S-1 (No.
333-12021) filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933 is hereby incorporated by reference.
ITEM 2. EXHIBITS.
2.1 Specimen of Certificate representing Registrant's
Common Stock.
2.2 Restated Certificate of Incorporation of Registrant.
2.3 Bylaws of Registrant.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
Date: October 15, 1996 CANDLEWOOD HOTEL COMPANY, INC.,
A DELAWARE CORPORATION
By: /s/ Warren D. Fix
-------------------------------------
Warren D. Fix
Executive Vice President,
Chief Financial Officer and Secretary
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EXHIBIT INDEX
Exhibit No. Description Numbered Page
- ----------- ----------- -------------
2.1 Specimen Stock Certificate
Representing Registrant's Common Stock.
2.2 Restated Certificate of Incorporation of Registrant.
2.3 Bylaws of Registrant.
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EXHIBIT 2.1
COMMON STOCK COMMON STOCK
NUMBER [LOGO] SHARES
CANDLEWOOD
Your Studio Hotel CUSIP 13741M 10 8
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS IS TO CERTIFY THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
THE PAR VALUE OF $.01 PER SHARE OF
CANDLEWOOD HOTEL COMPANY, INC.
(hereinafter called the "Corporation") transferable on the books of the
Corporation by said owner in person or by duly authorized attorney, upon
surrender of this certificate properly endorsed. This certificate is not valid
unless countersigned by the Transfer Agent and Registrar.
Witness, the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
[CANDLEWOOD SEAL]
/s/ /s/
EXECUTIVE VICE PRESIDENT, PRESIDENT AND CHIEF EXECUTIVE
CHIEF FINANCIAL OFFICER AND SECRETARY OFFICER
COUNTERSIGNED AND REGISTERED:
AMERICAN STOCK TRANSFER & TRUST COMPANY
(NEW YORK, NEW YORK) TRANSFER AGENT
AND REGISTRAR,
BY: AUTHORIZED SIGNATURE
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CANDLEWOOD HOTEL COMPANY, INC.
The Corporation will furnish without charge to each stockholder who so
requests a statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof authorized to be issued and the qualifications, limitations or
restrictions of such preferences and/or rights.
The following abbreviations, when used in the inscription on the face
of this Certificate, shall be construed as though they were written out in
full according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM- as tenants in common UNIF GIFT MIN ACT. _________________ Custodian ________________
TEN ENT- as tenants by the entireties (Cust.) (Minor)
JT TEN- as joint tenants with under Uniform Gifts to Minors
right of survivorship and Act _________________________
not as tenants in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For Value received, hereby sell, assign and transfer unto
--------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
/ /
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ------------------------------------------------------------------------- shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
---------------------------------------------
- ----------------------------------------------------------------------, Attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
-----------------------------------------
(SIGNATURE)
------------------------------------------------
------------------------------------------------
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME AS WRITTEN UPON THE FACE OF THE
CERTIFICATE, IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT, OR ANY CHANGE
WHATEVER.
SIGNATURE GUARANTEED:
- -------------------------------------------------
THE SIGNATURE MUST BE GUARANTEED BY A FIRM WHICH
IS A MEMBER OF A MEDALLION GUARANTEE PROGRAM.
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EXHIBIT 2.2
RESTATED CERTIFICATE OF INCORPORATION
OF
CANDLEWOOD HOTEL COMPANY, INC.
Candlewood Hotel Company, Inc., a corporation organized and
existing under the laws of the State of Delaware (hereinafter referred to as the
"Corporation") hereby certifies as follows:
1. The undersigned is the duly elected, qualified and acting
Executive Vice President, Chief Financial Officer and Secretary of the
Corporation.
2. The name of the Corporation is Candlewood Hotel Company,
Inc. The Corporation's original Certificate of Incorporation was filed with the
Secretary of State of Delaware on August 16, 1996 under the same name.
3. Pursuant to Sections 242 and 245 of the General Corporation
Law of the State of Delaware, and having been adopted in accordance therewith,
this Restated Certificate of Incorporation restates and integrates and amends
the provisions of the Certificate of Incorporation of this Corporation.
4. The text of the Certificate of Incorporation of the
Corporation, as it may have heretofore been amended or supplemented, is hereby
further amended and restated to read in its entirety as follows:
FIRST: The name of the Corporation (hereinafter the
"Corporation") is
Candlewood Hotel Company, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the Corporation in the State of Delaware is:
THE CORPORATION TRUST COMPANY
Corporation Trust Center
1209 Orange Street
Wilmington, New Castle County, Delaware 19801
THIRD: The nature of the business and of the purposes to be
conducted and promoted by the Corporation shall be to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is One Hundred and Five Million
(105,000,000), to be divided into two classes designated "Common Stock" and
"Preferred Stock". The Corporation shall be authorized to issue (a) One Hundred
Million (100,000,000) shares of Common Stock, par value $.01 per share, and (b)
Five Million (5,000,000) shares of Preferred Stock, par value $.01 per share.
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The Board of Directors is hereby empowered to cause the
Preferred Stock to be issued from time to time for such consideration as it may
from time to time fix, to cause such Preferred Stock to be issued in series with
such voting powers and such designations, preferences, privileges and relative,
participating, optional or other special rights as designated by the Board of
Directors in the resolution providing for the issuance of such series and,
within the limits and restrictions stated in any resolution or resolutions of
the Board of Directors originally fixing the number of shares constituting any
series, to increase or decrease (but not below the number of shares of such
series then outstanding), the number of shares of any such series subsequent to
the issue of shares of that series. Shares of Preferred Stock of any one series
shall be identical in all respects.
All shares of any series of Preferred Stock which shall have
been redeemed, converted, exchanged or otherwise surrendered to or acquired by
the Corporation pursuant to its terms, shall be cancelled and have the status of
authorized but unissued shares of Preferred Stock of the Corporation.
FIFTH: Subject to the rights, if any, of the holders of shares
of Preferred Stock then outstanding, if any, to elect additional directors under
specified circumstances, the number of the directors of the Corporation shall be
fixed from time to time by or pursuant to the Bylaws of the Corporation. At each
annual meeting of the stockholders of the Corporation, the directors shall be
elected to hold office until such person's successor is elected and qualified or
until such person's death, retirement, resignation or removal. The directors
need not be stockholders.
SIXTH: Subject to the rights, if any, of the holders of shares
of Preferred Stock then outstanding, if any, any or all of the directors of the
Corporation may be removed from office by the stockholders only for cause and
only by the affirmative vote of at least 66-2/3% of the outstanding shares of
Common Stock of the Corporation at any annual or special meeting of stockholders
of the Corporation, the notice of which shall state that the removal of a
director or directors is among the purposes of the meeting.
SEVENTH: Newly created directorships resulting from any
increase in the authorized number of directors or any vacancy on the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or any other cause shall be filled solely by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum, or by a sole remaining director. The directors so chosen shall
hold office until the next annual election of directors and until their
successors are duly elected and qualified, unless sooner displaced. If there are
no directors in office, then an election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office. No decrease
in
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the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
EIGHTH: Effective upon the closing of the Corporation's
initial sale of its Common Stock in a firm commitment underwriting involving a
public offering pursuant to a Registration Statement on Form S-1 under the
Securities Act of 1933, as amended, any action required or permitted to be taken
at any annual or special meeting of stockholders may be taken only upon the vote
of the stockholders at an annual or special meeting duly called and may not be
taken by written consent of the stockholders.
NINTH: Special meetings of the stockholders of the
Corporation, for any purpose, or purposes, unless otherwise prescribed by
statute, may be called by the President and shall be called by the President or
the Secretary at the request in writing of a majority of the Board of Directors,
the Chairman or any Co-Chairman of the Board of Directors and shall be held at
such place, on such date, and at such time as shall be fixed by the person or
persons calling the meeting, but such special meetings may not be called by any
other person or persons. Such request shall state the purpose or purposes of the
proposed meeting. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
TENTH: At an annual meeting of stockholders, only such
business shall be conducted, and only such proposals shall be acted upon, as
shall have been brought before the annual meeting (a) by, or at the direction
of, a majority of the directors, or (b) by any stockholder of the Corporation
who complies with the notice procedures set forth in this Article TENTH. For a
proposal to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to, or
mailed and received at, the principal executive offices of the Corporation not
less than 60 days prior to the scheduled annual meeting, regardless of any
postponements, deferrals or adjournments of that meeting to a later date;
provided, however, that if less than 70 days' notice or prior public disclosure
of the date of the scheduled annual meeting is given or made, notice by the
stockholder, to be timely, must be so delivered or received not later than the
close of business on the tenth day following the earlier of the day on which
such notice of the date of the scheduled annual meeting was mailed or the day on
which such public disclosure was made. A stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the
annual meeting (a) a brief description of the proposal desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (b) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business and any other stockholders
known by such stockholder to be supporting such proposal, (c) the class and
number of shares of the Corporation's stock which are beneficially owned by the
stockholder on the date of such stockholder notice and by any other stockholders
known by such stockholder to be supporting such proposal on the date of such
stockholder notice, and (d) any financial interest of the stockholder in such
proposal.
The presiding officer of the annual meeting shall determine
and declare at the annual meeting whether the stockholder proposal was made in
accordance with the terms of this
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Article TENTH. If the presiding officer determines that a stockholder proposal
was not made in accordance with the terms of this Article TENTH, he shall so
declare at the annual meeting and any such proposal shall not be acted upon at
the annual meeting.
This provision 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 new business shall be acted upon at such annual meeting unless stated, filed
and received as herein provided.
ELEVENTH: Subject to the rights, if any, of the holders of
shares of Preferred Stock then outstanding, if any, only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors, by any nominating committee or person
appointed by the Board, or by any stockholder of the Corporation entitled to
vote for the election of directors at the meeting who complies with the notice
procedures set forth in this Article ELEVENTH. Such nominations, other than
those made by or at the direction of the Board or by any nominating committee or
person appointed by the Board, shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to, or mailed and received at, the principal executive
offices of the Corporation not less than 60 days prior to the scheduled annual
meeting, regardless of any postponement, deferrals or adjournments of that
meeting to a later date; provided, however, that if less than 70 days' notice or
prior public disclosure of the date of the scheduled annual meeting is given or
made, notice by the stockholder, to be timely, must be so delivered or received
not later than the close of business on the tenth day following the earlier of
the day on which such notice of the date of the scheduled annual meeting was
mailed or the day on which such public disclosure was made. A stockholder's
notice to the Secretary shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a director, (i)
the name, age, business address and residence address of the person, (ii) the
principal number of shares of capital stock of the Corporation which are
beneficially owned by the person and (iii) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to Rule 14a under the Securities Exchange Act of
1934, as amended; and (b) as to the stockholder giving the notice (i) the name
and address, as they appear on the Corporation's books, of the stockholder and
(ii) the class and number of shares of the Corporation's stock which are
beneficially owned by the stockholder on the date of such stockholder notice.
The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as director of the Corporation.
The presiding officer of the annual meeting shall determine
and declare at the annual meeting whether the nomination was made in accordance
with the terms of this Article ELEVENTH. If the presiding officer determines
that a nomination was not made in accordance with the terms of this Article
ELEVENTH, he shall so declare at the annual meeting and any such defective
nomination shall be disregarded.
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TWELFTH: Notwithstanding anything contained in this Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 66-2/3% of the outstanding shares of Common Stock of the
Corporation shall be required to amend or repeal Articles FIFTH, SIXTH, SEVENTH,
EIGHTH, NINTH, TENTH, ELEVENTH, TWELFTH, THIRTEENTH or FOURTEENTH of this
Restated Certificate of Incorporation or to adopt any provision inconsistent
therewith.
The Board of Directors is expressly empowered to adopt, amend
or repeal the Bylaws of the Corporation. Any adoption, amendment or repeal of
the Bylaws of the Corporation by the Board of Directors shall require the
approval of a majority of the total number of authorized directors (whether or
not there exist any vacancies in previously authorized directorships at the time
any resolution providing for adoption, amendment or repeal is presented to the
Board). The stockholders shall also have power to adopt, amend or repeal the
Bylaws of the Corporation. In addition to any vote of the holders of any class
or series of stock of this Corporation required by law, the affirmative vote of
the holders of at least sixty-six and two-thirds percent (66-2/3%) of the
outstanding shares of Common Stock of the Corporation shall be required to
adopt, amend or repeal any provision of the Bylaws of the Corporation.
THIRTEENTH: (a) Each person who was or is made a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another Corporation or of a partnership,
joint venture, limited liability company, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) actually and
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that, except as provided in subparagraph (b)
hereof, indemnification in connection with a proceeding (or part thereof)
initiated by such person shall be permitted hereunder only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Article THIRTEENTH shall be a
contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer, to
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repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article
THIRTEENTH or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
(b) If a claim under subparagraph (a) of this Article
THIRTEENTH is not paid in full by the Corporation within thirty days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim or otherwise to enforce his or her rights to indemnification and
payment of expenses and, if successful, in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Article THIRTEENTH shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
FOURTEENTH: The personal liability of the directors of the
Corporation is hereby eliminated to the fullest extent permitted by paragraph
(7) of subsection (b) of Section 102 of the General Corporation Law of the State
of Delaware, as the same may be amended and supplemented.
FIFTEENTH: The Corporation is to have perpetual existence.
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SIXTEENTH: From time to time any of the provisions of this
Restated Certificate of Incorporation may be amended, altered or repealed, and
other provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted in the manner and at the time prescribed by said
laws, and all rights at any time conferred upon the stockholders of the
Corporation by this Restated Certificate of Incorporation are granted subject to
the provisions of this Article SIXTEENTH.
IN WITNESS WHEREOF, this Corporation has caused this Restated
Certificate of Incorporation to be signed by Warren D. Fix, its Executive Vice
President, Chief Financial Officer and Secretary, this 14th day of October,
1996.
CANDLEWOOD HOTEL COMPANY, INC.,
A DELAWARE CORPORATION
By: /s/ Warren D. Fix
-------------------------------
Warren D. Fix
Executive Vice President, Chief
Financial Officer and Secretary
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EXHIBIT 2.3
BYLAWS
OF
CANDLEWOOD HOTEL COMPANY, INC.,
A DELAWARE CORPORATION
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TABLE OF CONTENTS
Page
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ARTICLE I - OFFICES......................................................... 1
Section 1.1 Registered Office.................................. 1
Section 1.2 Other Offices...................................... 1
ARTICLE II - MEETINGS OF STOCKHOLDERS....................................... 1
Section 2.1 Place of Meetings.................................. 1
Section 2.2 Annual Meeting of Stockholders..................... 1
Section 2.3 Quorum; Adjourned Meetings and Notice Thereof...... 1
Section 2.4 Voting............................................. 2
Section 2.5 Proxies............................................ 2
Section 2.6 Special Meetings................................... 2
Section 2.7 Notice of Stockholder's Meetings................... 2
Section 2.8 Stockholder Proposals.............................. 2
Section 2.9 Maintenance and Inspection of Stockholder List..... 3
Section 2.10 No Stockholder Action by Written Consent Without
a Meeting........................................ 3
ARTICLE III - DIRECTORS..................................................... 4
Section 3.1 Number, Election and Tenure........................ 4
Section 3.2 Vacancies.......................................... 4
Section 3.3 Notification of Nomination......................... 4
Section 3.4 Powers............................................. 5
Section 3.5 Directors' Meetings................................ 5
Section 3.6 Regular Meetings................................... 6
Section 3.7 Special Meetings................................... 6
Section 3.8 Quorum............................................. 6
Section 3.9 Action Without Meeting............................. 6
Section 3.10 Telephonic Meetings................................ 6
Section 3.11 Committees of Directors............................ 6
Section 3.12 Minutes of Committee Meetings...................... 7
Section 3.13 Compensation of Directors.......................... 7
Section 3.14 Indemnification.................................... 7
ARTICLE IV - OFFICERS....................................................... 9
Section 4.1 Officers.......................................... 9
Section 4.2 Election of Officers.............................. 10
Section 4.3 Subordinate Officers.............................. 10
Section 4.4 Compensation of Officers.......................... 10
Section 4.5 Term of Office; Removal and Vacancies............. 10
Section 4.6 Chairman of the Board............................. 10
Section 4.7 President......................................... 10
Section 4.8 Vice President.................................... 10
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TABLE OF CONTENTS (Cont'd)
Page
----
Section 4.9 Secretary......................................... 10
Section 4.10 Assistant Secretaries............................. 11
Section 4.11 Chief Financial Officer........................... 11
Section 4.12 Assistant Treasurer............................... 11
ARTICLE V - CERTIFICATES OF STOCK........................................... 11
Section 5.1 Certificates...................................... 11
Section 5.2 Signatures on Certificates........................ 12
Section 5.3 Statement of Stock Rights, Preferences, Privileges 12
Section 5.4 Lost Certificates................................. 12
Section 5.5 Transfers of Stock................................ 12
Section 5.6 Fixing Record Date................................ 12
Section 5.7 Registered Stockholders........................... 13
ARTICLE VI - GENERAL PROVISIONS............................................. 13
Section 6.1 Dividends......................................... 13
Section 6.2 Payment of Dividends.............................. 13
Section 6.3 Checks............................................ 13
Section 6.4 Fiscal Year....................................... 13
Section 6.5 Corporate Seal.................................... 13
Section 6.6 Manner of Giving Notice........................... 14
Section 6.7 Waiver of Notice.................................. 14
Section 6.8 Annual Statement.................................. 14
ARTICLE VII - AMENDMENTS.................................................... 14
Section 7.1 Amendment by Directors or Stockholders............ 14
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BYLAWS
OF
CANDLEWOOD HOTEL COMPANY, INC.,
A DELAWARE CORPORATION
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office shall be
in the City of Wilmington, County of New Castle, State of Delaware.
Section 1.2 Other Offices. The corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings. Meetings of stockholders shall
be held at any place within or without the State of Delaware designated by the
Board of Directors. In the absence of any such designation, stockholders'
meetings shall be held at the principal executive office of the corporation.
Section 2.2 Annual Meeting of Stockholders. The annual meeting
of stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 2.3 Quorum; Adjourned Meetings and Notice Thereof. A
majority of the stock issued and outstanding and entitled to vote at any meeting
of stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these
Bylaws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, a majority of the
voting stock represented in person or by proxy may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been
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transacted at the meeting as originally notified. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote thereat.
Section 2.4 Voting. When a quorum is present at any meeting,
the vote of the holders of a majority of the stock having voting power present
in person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes, or the Certificate of Incorporation, or these Bylaws, a different vote
is required in which case such express provision shall govern and control the
decision of such question.
Section 2.5 Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the corporation on the record date set by the Board of
Directors as provided in Article V, Section 5.6 hereof. All elections shall be
had and all questions decided by a plurality vote.
Section 2.6 Special Meetings. Special meetings of the
stockholders, for any purpose, or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the President
and shall be called by the President or the Secretary at the request in writing
of a majority of the Board of Directors, the Chairman or any Co-Chairman of the
Board of Directors and shall be held at such place, on such date, and at such
time as shall be fixed by the person or persons calling the meeting, but such
special meetings may not be called by any other person or persons. Such request
shall state the purpose or purposes of the proposed meeting. Business transacted
at any special meeting of stockholders shall be limited to the purposes stated
in the notice.
Section 2.7 Notice of Stockholder's Meetings. Whenever
stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given which notice shall state the place,
date and hour of the meeting, and, in the case of a special meeting, the purpose
or purposes for which the meeting is called. The written notice of any meeting
shall be given to each stockholder entitled to vote at such meeting not less
than ten nor more than sixty days before the date of the meeting. If mailed,
notice is given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
corporation.
Section 2.8 Stockholder Proposals. At an annual meeting of
stockholders, only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been brought before the annual meeting (a)
by, or at the direction of, a majority of the directors, or (b) by any
stockholder of the corporation who complies with the notice procedures set forth
in this Section 2.8. For a proposal to be properly brought before an annual
meeting by a
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stockholder, the stockholder must be given timely notice thereof in writing to
the Secretary of the corporation. To be timely, a stockholder's notice must be
delivered to, or mailed and received at, the principal executive offices of the
corporation not less than 60 days prior to the scheduled annual meeting,
regardless of any postponements, deferrals or adjournments of that meeting to a
later date; provided, however, that if less than 70 days' notice or prior public
disclosure of the date of the scheduled annual meeting is given or made, notice
by the stockholder, to be timely, must be so delivered or received not later
than the close of business on the tenth day following the earlier of the day on
which such notice of the date of the scheduled annual meeting was mailed or the
day on which such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (a) a brief description of the proposal desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business and any other
stockholders known by such stockholder to be supporting such proposal, (c) the
class and number of shares of the corporation's stock which are beneficially
owned by the stockholder on the date of such stockholder notice and by any other
stockholders known by such stockholder to be supporting such proposal on the
date of such stockholder notice, and (d) any financial interest of the
stockholder in such proposal.
The presiding officer of the annual meeting shall determine
and declare at the annual meeting whether the stockholder proposal was made in
accordance with the terms of this Section 2.8. If the presiding officer
determines that a stockholder proposal was not made in accordance with the terms
of this Section 2.8, he shall so declare at the annual meeting and any such
proposal shall not be acted upon at the annual meeting.
This provision 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 new business shall be acted upon at such annual meeting unless stated, filed
and received as herein provided.
Section 2.9 Maintenance and Inspection of Stockholder List.
The officer who has charge of the stock ledger of the corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 2.10 No Stockholder Action by Written Consent Without
a Meeting. Effective upon the closing of the corporation's initial sale of its
Common Stock in a firm commitment underwriting involving a public offering
pursuant to a Registration Statement on
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Form S-1 under the Securities Act of 1933, as amended, any action required or
permitted to be taken at any annual or special meeting of stockholders may be
taken only upon the vote of the stockholders at an annual or special meeting
duly called and may not be taken by written consent of the stockholders.
ARTICLE III
DIRECTORS
Section 3.1 Number, Election and Tenure. The authorized number
of directors which shall constitute the Board shall not be less than four (4)
nor more than seven (7). The exact number shall be determined from time to time
by resolution of the Board. Until otherwise determined by such resolution, the
Board shall consist of four (4) persons. Directors shall be elected at the
annual meeting of stockholders and each director shall serve until such person's
successor is elected and qualified or until such person's death, retirement,
resignation or removal. The directors need not be stockholders. Subject to the
rights, if any, of the holders of shares of Preferred Stock then outstanding, if
any, any and all directors of the corporation may be removed from office by the
stockholders only for cause and only by the affirmative vote of at least
sixty-six and two-thirds percent (66-2/3%) of the outstanding shares of Common
Stock of the corporation at any annual or special meeting of stockholders of the
corporation, the notice of which shall state that the removal of a director or
directors is among the purposes of the meeting.
Section 3.2 Vacancies. Vacancies on the Board of Directors by
reason of death, resignation, retirement, disqualification, removal from office,
or otherwise, and newly created directorships resulting from any increase in the
authorized number of directors shall be filled solely by the affirmative vote of
a majority of the remaining directors then in office, even though less than a
quorum, or by a sole remaining director. The directors so chosen shall hold
office until the next annual election of directors and until their successors
are duly elected and qualified, unless sooner displaced. If there are no
directors in office, then an election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office. No decrease
in the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
Section 3.3 Notification of Nomination. Subject to the rights,
if any, of the holders of shares of Preferred Stock then outstanding, if any,
only persons who are nominated in accordance with the following procedures shall
be eligible for election as directors. Nominations of persons for election to
the Board of Directors of the corporation may be made
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at a meeting of stockholders by or at the direction of the Board of Directors,
by any nominating committee or person appointed by the Board, or by any
stockholder of the corporation entitled to vote for the election of directors at
the meeting who complies with the notice procedures set forth in this Section
3.3. Such nominations, other than those made by or at the direction of the Board
or by any nominating committee or person appointed by the Board, shall be made
pursuant to timely notice in writing to the Secretary of the corporation. To be
timely, a stockholder's notice must be delivered to, or mailed and received at,
the principal executive offices of the corporation not less than 60 days prior
to the scheduled annual meeting, regardless of any postponements, deferrals or
adjournments of that meeting to a later date; provided, however, that if less
than 70 days' notice or prior public disclosure of the date of the scheduled
annual meeting is given or made, notice by the stockholder, to be timely, must
be so delivered or received not later than the close of business on the tenth
day following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public disclosure
was made. A stockholder's notice to the Secretary shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director, (i) the name, age, business address and residence address of the
person, (ii) the principal number of shares of capital stock of the corporation
which are beneficially owned by the person and (iii) any other information
relating to the person that is required to be disclosed in solicitations for
proxies for election of directors pursuant to Rule 14a under the Securities
Exchange Act of 1934, as amended; and (b) as to the stockholder giving the
notice (i) the name and address, as they appear on the corporation's books, of
the stockholder and (ii) the class and number of shares of the corporation's
stock which are beneficially owned by the stockholder on the date of such
stockholder notice. The corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as director of the
corporation.
The presiding officer of the annual meeting shall determine
and declare at the annual meeting whether the nomination was made in accordance
with the terms of this Section 3.3. If the presiding officer determines that a
nomination was not made in accordance with the terms of this Section 3.3, he
shall so declare at the annual meeting and any such defective nomination shall
be disregarded.
Section 3.4 Powers. The property and business of the
corporation shall be managed by or under the direction of its Board of
Directors. In addition to the powers and authorities by these Bylaws expressly
conferred upon them, the Board may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
Section 3.5 Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the corporation
outside of the State of Delaware.
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Section 3.6 Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from time
to time be determined by the Board.
Section 3.7 Special Meetings. Special meetings of the Board of
Directors may be called by the President on forty-eight hours' notice to each
director, either personally or by mail or by telegram; special meetings shall be
called by the President or the Secretary in like manner and on like notice on
the written request of two directors unless the Board consists of only one
director; in which case special meetings shall be called by the President or
Secretary in like manner or on like notice on the written request of the sole
director.
Section 3.8 Quorum. At all meetings of the Board of Directors
a majority of the authorized number of directors shall be necessary and
sufficient to constitute a quorum for the transaction of business, and the vote
of a majority of the directors present at any meeting at which there is a
quorum, shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute, by the Certificate of Incorporation or by
these Bylaws. If a quorum shall not be present at any meeting of the Board of
Directors the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. If only one director is authorized, such sole director shall
constitute a quorum.
Section 3.9 Action Without Meeting. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, if all members of the
Board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or
committee.
Section 3.10 Telephonic Meetings. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
Section 3.11 Committees of Directors. The Board of Directors
may, by resolution passed by a majority of the whole Board, designate one or
more committees, each such committee to consist of one or more of the directors
of the corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the corporation, and
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may authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the Bylaws of the corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 3.12 Minutes of Committee Meetings. Each committee
shall keep regular minutes of its meetings and report the same to the Board of
Directors when required.
Section 3.13 Compensation of Directors. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, the Board of
Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
Section 3.14 Indemnification.
(a) The corporation shall indemnify any
person who was or is made a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, limited liability company,
trust or other enterprise, against all expense, liability and loss (including
attorneys' fees), judgments, fines, ERISA excise taxes and amounts paid or to be
paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving
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at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, limited liability company,
trust or other enterprise against expenses, liability and loss (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation and except that no such indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been adjudged
to be liable for negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court
shall deem proper.
(c) To the extent that a director, officer,
employee or agent of the corporation shall be successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in paragraphs
(a) and (b), or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under paragraphs (a)
and (b) (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in paragraphs (a) and (b).
Such determination shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses incurred in defending a civil
or criminal action, suit or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the manner provided in paragraph (d) upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the corporation as authorized in this Section 3.14.
(f) The indemnification provided by this
Section 3.14 shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any bylaw, agreement, vote of stockholders 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 a person.
(g) The Board of Directors may authorize, by
a vote of a majority of a quorum of the Board of Directors, the corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the
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corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this Section 3.14.
(h) For the purposes of this Section 3.14,
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
limited liability company, trust or other enterprise, shall stand in the same
position under the provisions of this Section with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references
to "other enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
corporation" shall include service as a director, officer, employee or agent of
the corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this section.
ARTICLE IV
OFFICERS
Section 4.1 Officers. The officers of this corporation shall
be chosen by the Board of Directors and shall include a Chairman of the Board, a
President, a Secretary, and a Chief Financial Officer. The corporation may also
have at the discretion of the Board of Directors such other officers as are
desired, including one or more Vice Presidents, one or more Assistant
Secretaries and Assistant Treasurers, and such other officers as may be
appointed in accordance with the provisions of Section 4.3 hereof. In the event
there are two or more Vice Presidents, then one or more may be designated as
Executive Vice President, Senior Vice President, or other similar or dissimilar
title. At the time of the election of officers, the directors may by resolution
determine the order of their rank. Any number of offices may be held by the same
person, unless the Certificate of Incorporation or these Bylaws otherwise
provide.
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Section 4.2 Election of Officers. The Board of Directors, at
its first meeting after each annual meeting of stockholders, shall choose the
officers of the corporation.
Section 4.3 Subordinate Officers. The Board of Directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board.
Section 4.4 Compensation of Officers. The salaries of all
officers and agents of the corporation shall be fixed by the Board of Directors.
Section 4.5 Term of Office; Removal and Vacancies. The
officers of the corporation shall hold office until their successors are chosen
and qualify in their stead. Any officer elected or appointed by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. If the office of any officer or officers becomes vacant
for any reason, the vacancy shall be filled by the Board of Directors.
Section 4.6 Chairman of the Board. The Chairman of the Board,
if such an officer be elected, shall, if present, preside at all meetings of the
Board of Directors and exercise and perform such other powers and duties as may
be from time to time assigned to him by the Board of Directors or prescribed by
these Bylaws. If there is no President, the Chairman of the Board shall in
addition be the Chief Executive Officer of the corporation and shall have the
powers and duties prescribed in Section 4.7 of this Article IV.
Section 4.7 President. Subject to such supervisory powers, if
any, as may be given by the Board of Directors to the Chairman of the Board, if
there be such an officer, the President shall be the Chief Executive Officer of
the corporation and shall, subject to the control of the Board of Directors,
have general supervision, direction and control of the business and officers of
the corporation. He shall preside at all meetings of the stockholders and, in
the absence of the Chairman of the Board, or if there be none, at all meetings
of the Board of Directors. He shall be an ex-officio member of all committees
and shall have the general powers and duties of management usually vested in the
office of President and Chief Executive Officer of corporations, and shall have
such other powers and duties as may be prescribed by the Board of Directors or
these Bylaws.
Section 4.8 Vice President. In the absence or disability of
the President, the Vice Presidents in order of their rank as fixed by the Board
of Directors, or if not ranked, the Vice President designated by the Board of
Directors, shall perform all the duties of the President, and when so acting
shall have all the powers of and be subject to all the restrictions upon the
President. The Vice Presidents shall have such other duties as from time to time
may be prescribed for them, respectively, by the Board of Directors.
Section 4.9 Secretary. The Secretary shall attend all sessions
of the Board of Directors and all meetings of the stockholders and record all
votes and the minutes of all proceedings in a book to be kept for that purpose;
and shall perform like duties for the standing
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committees when required by the Board of Directors. He shall give, or cause to
be given, notice of all meetings of the stockholders and of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or these Bylaws. He shall keep in safe custody the seal of the
corporation, and when authorized by the Board, affix the same to any instrument
requiring it, and when so affixed it shall be attested by his signature or by
the signature of an Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section 4.10 Assistant Secretaries. The Assistant Secretary,
or if there be more than one, the Assistant Secretaries in the order determined
by the Board of Directors, or if there be no such determination, the Assistant
Secretary designated by the Board of Directors, shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 4.11 Chief Financial Officer. The Chief Financial
Officer shall have the custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging
to the corporation and shall deposit all moneys, and other valuable effects in
the name and to the credit of the corporation, in such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements, and shall render to the Board of Directors, at its
regular meetings, or when the Board of Directors so requires, an account of all
his transactions as Chief Financial Officer and of the financial condition of
the corporation. If required by the Board of Directors, he shall give the
corporation a bond, in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors, for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
Section 4.12 Assistant Treasurer. The Assistant Treasurer, or
if there shall be more than one, the Assistant Treasurers in the order
determined by the Board of Directors, or if there be no such determination, the
Assistant Treasurer designated by the Board of Directors, shall, in the absence
or disability of the Chief Financial Officer, perform the duties and exercise
the powers of the Chief Financial Officer and shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
ARTICLE V
CERTIFICATES OF STOCK
Section 5.1 Certificates. Every holder of stock of the
corporation shall be entitled to have a certificate signed by, or in the name of
the corporation by, the Chairman or Vice Chairman of the Board of Directors, or
the President or a Vice President, and by the
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Secretary or an Assistant Secretary, or the Chief Financial Officer or an
Assistant Treasurer of the corporation, certifying the number of shares
represented by the certificate owned by such stockholder in the corporation.
Section 5.2 Signatures on Certificates. Any or all of the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent, or
registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer, transfer agent, or registrar at
the date of issue.
Section 5.3 Statement of Stock Rights, Preferences,
Privileges. If the corporation shall be authorized to issue more than one class
of stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as
otherwise provided in section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the corporation shall issue to represent such class or
series of stock, a statement that the corporation will furnish without charge to
each stockholder who so requests the 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.
Section 5.4 Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 5.5 Transfers of Stock. Upon surrender to the
corporation, or the transfer agent of the corporation, of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignation or authority to transfer, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 5.6 Fixing Record Date. In order that the corporation
may determine the stockholders entitled to notice of or to vote at any meeting
of the stockholders, or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or
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entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date which shall not be more than sixty
nor less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
Section 5.7 Registered Stockholders. The corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof, save as
expressly provided by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 6.2 Payment of Dividends. Before payment of any
dividend there may be set aside out of any funds of the corporation available
for dividends such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think conducive to
the interests of the corporation, and the directors may abolish any such
reserve.
Section 6.3 Checks. All checks or demands for money and notes
of the corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 6.4 Fiscal Year. The fiscal year of the corporation
shall be fixed by resolution of the Board of Directors.
Section 6.5 Corporate Seal. The corporate seal shall have
inscribed thereon the name of the corporation, the year of its organization and
the words "Corporate Seal, Delaware". Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
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Section 6.6 Manner of Giving Notice. Whenever, under the
provisions of the statutes or of the Certificate of Incorporation or of these
Bylaws, notice is required to be given to any director or stockholder, it shall
not be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given by
telegram.
Section 6.7 Waiver of Notice. Whenever any notice is required
to be given under the provisions of the statutes or of the Certificate of
Incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed to be equivalent.
Section 6.8 Annual Statement. The Board of Directors shall
present at each annual meeting, and at any special meeting of the stockholders
when called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
ARTICLE VII
AMENDMENTS
Section 7.1 Amendment by Directors or Stockholders. The Board
of Directors is expressly empowered to adopt, amend or repeal bylaws of the
corporation, without the approval of the stockholders. Any adoption, amendment
or repeal of bylaws of the corporation by the Board of Directors shall require
the approval of a majority of the total number of authorized directors (whether
or not there exist any vacancies in previously authorized directorships at the
time any resolution providing for adoption, amendment or repeal is presented to
the Board). The stockholders shall also have power to adopt, amend or repeal the
bylaws of the corporation. In addition to any vote of the holders of any class
or series of stock of this corporation required by law or by the Certificate of
Incorporation, the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the outstanding shares of Common Stock of the
corporation shall be required to adopt, amend or repeal any provisions of the
bylaws of the corporation.
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CERTIFICATE OF SECRETARY
OF
CANDLEWOOD HOTEL COMPANY, INC.,
A DELAWARE CORPORATION
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of
Candlewood Hotel Company, Inc., a Delaware corporation; and
(2) That the foregoing bylaws, comprising fourteen (14) pages,
constitute the bylaws of said corporation as duly adopted by Unanimous Written
Consent of the Board of Directors of said corporation as of September 30, 1996.
IN WITNESS WHEREOF, I have hereunto subscribed my name this
14th day of October, 1996.
/s/ Warren D. Fix
-----------------------------
Warren D. Fix
Secretary
