As filed with the Securities and Exchange Commission on December 27, 1996
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
AMERIHOST PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3312434
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2400 EAST DEVON AVENUE, SUITE 280
DES PLAINES, ILLINOIS 60018
(Address of Principal Executive Offices) (Zip Code)
AMERIHOST PROPERTIES, INC.
1996 OMNIBUS INCENTIVE STOCK PLAN
AMERIHOST PROPERTIES, INC.
1996 STOCK OPTION PLAN FOR NONEMPLOYEE DIRECTORS
AMERIHOST PROPERTIES, INC.
STOCK OPTION PLANS FOR KEY PERSONNEL
(Full title of each plan)
Michael P. Holtz (847) 298-4500
President and Chief Executive Officer (Telephone number,
2400 East Devon Avenue, Suite 280 including area code,
Des Plaines, Illinois 60018 of agent for service)
(Name and address of agent for service)
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
TITLE OF AMOUNT TO MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PRICE PER OFFERING FEE
SHARE(1) PRICE(1)
Common Stock 2,183,083 $6.25 $13,644,269 $4,135
(par value shares(2)
$.005 per
share)
(1) Estimated solely for purposes of calculating the amount of the
registration fee pursuant to Rule 457(c) of the Securities Act of
1933, based on the average of the high and low sales prices of a share
of Common Stock of the Registrant on the Nasdaq National Market on
December 23, 1996.
(2) An undetermined number of additional shares may be issued if the anti-
dilution adjustment provisions of the plans become operative.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by Amerihost Properties, Inc. (the
"Company") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
(b) The Company's Quarterly Report on Form 10-Q for the quarterly
periods ended March 31, 1996, June 30, 1996 and September 30,
1996.
(c) The description of the Company's common stock, par value $.005
per share (the "Common Stock"), contained in the Company's registration
statement on Form 8-A filed under the Securities Exchange Act of 1934 (File
No. 000-15291), including any subsequent amendment or any report filed for
the purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be deemed to
be incorporated by reference in this registration statement and to be part
hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents").
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this registration statement to
the extent that a statement contained herein or in any other subsequently
filed Incorporated Document modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of directors and officers under certain
circumstances as set forth therein. The Company's By-Laws provide that the
Company shall indemnify officers and directors to the fullest extent
permitted by law in the manner permissible under the laws of the State of
Delaware. The Company also maintains liability insurance for the benefit
of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
Reference is made to the Exhibit Index.
ITEM 9. UNDERTAKINGS.
The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Act"), each such post-effective
amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for the purposes of determining any liability under the
Act, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6, or otherwise,
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Des Plaines, Illinois on December 27, 1996.
AMERIHOST PROPERTIES, INC.
By: /s/ Michael P. Holtz
------------------------------------
Michael P. Holtz
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Michael P. Holtz and Russell
J. Cerqua, and each of them, his true and lawful attorney-in-fact and
agent, each with full power of substitution and revocation, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration
statement, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto each such attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as such person
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement and the foregoing power of attorney have been signed
by the following persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/ H. Andrew Torchia
------------------------- Chairman of the Board December 27, 1996
H. Andrew Torchia of Directors
/s/ Michael P. Holtz President, Chief
------------------------- Executive Officer and December 27, 1996
Michael P. Holtz Director
(Principal Executive
Officer)
/s/ Richard A. D'Onofrio Executive Vice
------------------------- President and December 27, 1996
Richard A. D'Onofrio Director
/s/ Russell J. Cerqua Executive Vice
------------------------- President of Finance, December 27, 1996
Russell J. Cerqua Secretary, Treasurer,
Chief Financial
Officer and Director
(Principal Financial
Officer)
/s/ James B. Dale Controller December 27, 1996
------------------------- (Principal Accounting
James B. Dale Officer)
/s/ Reno J. Bernardo Director December 27, 1996
-------------------------
Reno J. Bernardo
/s/ Salomon J. Dayan
------------------------- Director December 27, 1996
Salomon J. Dayan
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
NUMBER
4(a) Amerihost Properties, Inc. 1996 Omnibus Incentive Stock Plan,
incorporated herein by reference to Appendix A to the Company's
Proxy Statement for Annual Meeting of Shareholders filed on July
25, 1996 (File No. 000-15291).
4(b) Amerihost Properties, Inc. 1996 Stock Option Plan for Nonemployee
Directors, incorporated herein by reference to Appendix A to the
Company's Proxy Statement for Annual Meeting of Shareholders
filed on July 25, 1996 (File No. 000-15291).
4(c) Restated Certificate of Incorporation of the Company, as amended.
4(d) By-Laws of the Company, incorporated herein by reference to the
Company's Report on Form 10-K filed on March 26, 1993.
5 Opinion of McDermott, Will & Emery as to the legality of the
securities being registered.
23(a) Consent of McDermott, Will & Emery (included in its opinion filed
as Exhibit 5).
23(b) Consent of BDO Seidman, LLP.
24 Power of Attorney (included with the signature page to this
registration statement).
EXHIBIT 4(c)
RESTATED CERTIFICATE OF INCORPORATION
OF
CHICAGOLAND CONCESSIONS, INC.
- --------------------------------------------------------------------------------
Adopted in accordance with the provisions
of Section 242 and Section 245
of the General Corporation Law
of the State of Delaware
- --------------------------------------------------------------------------------
We, H. Andrew Torchia, President, and Michael P. Holtz, Secretary, of
CHICAGOLAND CONCESSIONS, INC., a corporation existing under the laws of the
State of Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is CHICAGOLAND CONCESSIONS, INC.
SECOND: That the Certificate of Incorporation of the corporation was filed
by the Secretary of State, Dover, Delaware, on the 19th day of September, 1984.
THIRD: That the text of the Certificate of Incorporation of said
CHICAGOLAND CONCESSIONS, INC., as amended, is hereby amended and restated to
read in its entirety as follows:
Article First
Name
----
The name of the corporation is America Pop, Inc.
Article Second
Registered Office
-----------------
The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of the registered agent at such address is the
Corporation Trust Company.
Article Third
Purposes
--------
The nature of the business to be conducted or promoted and the purposes of
the Corporation are to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
Article Fourth
Capital Stock Classes
---------------------
The total number of shares of all shares of capital stock which the
Corporation has the authority to issue is 12,000,000 shares of Common Stock
(Common Stock), $.001 par value per share.
I. Common Stock
1. Dividends.
The holders of the Common Stock are entitled to receive, to the extent
permitted by law, such dividends as may be declared from time to time by the
Board of Directors.
2. Liquidation.
In the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets of winding up of the Corporation, after distribution in
full of the preferred amounts, if any, holders of Common Stock shall be entitled
to receive all of the remaining assets of the Corporation of whatever kind
available for distribution to stockholders ratably in proportion to the number
of shares of Common Stock held by them respectively. The Board of Directors may
distribute in kind to the holders of Common Stock such remaining assets of the
Corporation or may sell, transfer or otherwise dispose of all or any part of
such remaining assets to any other corporation, trust or other entity and
receive payment therefor in cash, stock or obligations of such other
corporation, trust or other entity, or any combination thereof, and may sell all
or part of the consideration so received and distribute any balance thereof in
kind to holders of Common Stock. The merger or consolidation of the Corporation
into or with any other corporation, or the merger of any other corporation into
it, or any purchase or redemption of shares of stock of the Corporation of any
class, shall not be deemed to be a dissolution, liquidation or winding up of the
Corporation for the purposes of this paragraph.
3. Voting Rights.
Except as may be otherwise required by law or this Certificate of
Incorporation, each holder of Common Stock has one vote in respect of each of
stock held by him of record on the books of the Corporation on all matters voted
upon by the stockholders.
II. Other Provisions
1. Preemptive Rights.
No stockholder shall have any preemptive rights to subscribe to an
additional issue of stock of any class or series or to any securities of the
Corporation convertible into such stock.
2. Changes in Authorized Capital Stock.
Any amendment to this Certificate of Incorporation which increases or
decreases the authorized capital stock of any class or classes may be adopted by
the affirmative vote of the holders of a majority of the outstanding shares of
the voting stock of the Corporation.
Article Fifth
Board of Directors
------------------
1. Powers of the Board.
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized:
(a) To make, alter or repeal the bylaws of the Corporation.
(b) To authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation.
(c) To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any
reserve in the manner in which it was created.
(d) By a majority of the whole Board, to designate one or more committees,
each 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 the 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, or in the bylaws of the Corporation,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation
and may authorize the seal of the Corporation to be affixed to all papers
which may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution, or amending the bylaws of the Corporation; and, unless the
resolution or bylaws expressly so provide, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance of
stock.
(e) When and as authorized by the stockholders in accordance with statute,
to sell, lease or exchange all or substantially all of the property and
assets of the Corporation, including its goodwill and its corporate
franchises, upon such terms and conditions and for such consideration,
which may consist in whole or in part of money or property including shares
of stock in, and/or other securities of, any other corporation or
corporations, as the Board of Directors shall deem expedient and for the
best interest of the Corporation.
2. Terms and Number of Board Members.
The number of members of the Board of Directors will be fixed from time to
time by the Board of Directors, but (subject to vacancies) in no event may there
be less than three directors. Each Director shall serve until the next annual
meeting of stockholders or until his successor is elected.
If any vacancy occurs in the Board of Directors during a term, the
remaining directors, by affirmative vote of a majority thereof, may elect a
director to fill the vacancy until the next annual meeting of stockholders.
Article Sixth
Records
-------
The books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such place or places
as may be designated from time to time by the Board of Directors or in the
bylaws of the Corporation. Elections of directors need not be by written ballot
unless the bylaws of the Corporation shall so provide.
Article Seventh
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the
directors or officer is present at or participates in the meetings of the board
or committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purposes, if:
1. The material facts as to his interests and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the board or committee in good faith authorizes the contract or
transaction by a vote sufficient for such purpose without counting the vote of
the interested director or directors; or
2. The material facts as to his interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or
3. The contract or transaction is fair to the Corporation as of the time
it is authorized, approved or ratified by the Board of Directors, a committee
thereof, or the stockholders. Interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Article Eighth
Indemnification
---------------
The Corporation shall, to the full extent permitted by Section 145 of the
General Corporation Law of the State of Delaware, as amended from time to time,
indemnify all persons whom it may indemnify pursuant thereto.
Article Ninth
Arrangements with Creditors
---------------------------
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directors. If a majority in number representing three-
fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
corporation as consequence or such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders of this Corporation, as the case may be, and also on this
Corporation.
Article Tenth
Stockholder Action by Consent
-----------------------------
Any Corporation action upon which a vote of stockholders is required or
permitted may be taken without a meeting or vote of stockholders with the
written consent of stockholders having not less than a majority of all of the
stock entitled to vote upon the action if a meeting were held; provided, that in
no case shall the written consent be by holders having less than the minimum
percent of the vote required by statute for the proposed corporate action and
provided that prompt notice be given to all stockholders of the taking of
corporate action without a meeting and by less than unanimous written consent.
Article Eleventh
Amendment
---------
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
Article Twelfth
The stockholder and directors shall have the power to hold their meetings
and keep the books, documents and papers of the Corporation outside the State of
Delaware, at such places as may be from time to time designated by the bylaws or
by resolution of the stockholders or directors, except as otherwise required by
the laws of Delaware.
Article Thirteenth
The name and mailing address of each incorporator is as follows:
W. J. Reif Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
V. A. Brookens Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
J. L. Austin Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
FOURTH: That the restatement of the Certificate of Incorporation has been
duly adopted in accordance with the provisions of Sections 242 and 245 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said AMERICA POP, INC., has caused this certificate to
be signed by H. Andrew Torchia, its President, and Michael P. Holtz, its
Secretary, this 5th day of September, 1985.
AMERICA POP, INC.
By: /s/ H. Andrew Torchia
----------------------------------
H. Andrew Torchia
President
ATTEST
By: /s/ Michael P. Holtz
-----------------------------
Michael P. Holtz
Secretary
AMENDMENT TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICA POP, INC.
- -------------------------------------------------------------------------
Adopted in accordance with the provisions
of Section 242 and Section 245
of the General Corporation Law
of the State of Delaware
- -------------------------------------------------------------------------
We, H. Andrew Torchia, President, and Michael P. Holtz, Secretary, of
AMERICA POP, INC., a corporation existing under the laws of the State of
Delaware, do hereby certify as follows:
FIRST: That the name of the corporation is AMERICA POP, INC.
SECOND: That the Certificate of Incorporation of the corporation was filed
by the Secretary of State, Dover, Delaware, on the 19th day of September, 1984,
and the Restated Certificate of Incorporation was filed with the Secretary of
State, Dover, Delaware, on the 19th day of September, 1985.
THIRD: That Article Fourth of the Restated Certificate of Incorporation of
said AMERICA POP, INC., is hereby amended and restated to read in its entirety
as follows:
Article Fourth
Capital Stock Classes
---------------------
The total number of shares of all shares of capital stock which the
Corporation has the authority to issue is 120,000,000 shares of Common Stock
(Common Stock), $.0001 par value per share.
I. Common Stock
1. Dividends.
The holders of the Common Stock are entitled to receive, to the extent
permitted by law, such dividends as may be declared from time to time by the
Board of Directors.
2. Liquidation.
In the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets of winding up of the Corporation, after distribution in
full of the preferred amounts, if any, holders of Common Stock shall be entitled
to receive all of the remaining assets of the Corporation of whatever kind
available for distribution to stockholders ratably in proportion to the number
of shares of Common Stock held by them respectively. The Board of Directors may
distribute in kind to the holders of Common Stock such remaining assets of the
Corporation or may sell, transfer or otherwise dispose of all or any part of
such remaining assets to any other corporation, trust or other entity and
receive payment therefor in cash, stock or obligations of such other
corporation, trust or other entity, or any combination thereof, and may sell all
or part of the consideration so received and distribute any balance thereof in
kind to holders of Common Stock. The merger or consolidation of the Corporation
into or with any other corporation, or the merger of any other corporation into
it, or any purchase or redemption of shares of stock of the Corporation of any
class, shall not be deemed to be a dissolution, liquidation or winding up of the
Corporation for the purposes of this paragraph.
3. Voting Rights.
Except as may be otherwise required by law or this Certificate of
Incorporation, each holder of Common Stock has one vote in respect of each of
stock held by him of record on the books of the Corporation on all matters voted
upon by the stockholders.
II. Other Provisions
1. Preemptive Rights.
No stockholder shall have any preemptive rights to subscribe to an
additional issue of stock of any class or series or to any securities of the
Corporation convertible into such stock.
2. Changes in Authorized Capital Stock.
Any amendment to this Certificate of Incorporation which increases or
decreases the authorized capital stock of any class or classes may be adopted by
the affirmative vote of the holders of a majority of the outstanding shares of
the voting stock of the Corporation.
FOURTH: That this Amendment to the Restated Certificate of Incorporation
has been duly adopted in accordance with the provisions of Sections 242 and 245
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said AMERICA POP, INC., has caused this certificate to
be signed by H. Andrew Torchia, its President, and Michael P. Holtz, its
Secretary, this 18th day of October, 1985.
AMERICA POP, INC.
By: /s/ H. Andrew Torchia
----------------------------------
H. Andrew Torchia
President
ATTEST
By: /s/ Michael P. Holtz
-----------------------------
Michael P. Holtz
Secretary
SECOND CERTIFICATE OF AMENDMENT
OF
THE RESTATED CERTIFICATE OF INCORPORATION
OF
AMERICA POP, INC.
(Pursuant to Section 242 of Title 8,
Chapter 1 of the Delaware Code of 1953)
America Pop, Inc. (the "Corporation"), a corporation organized and existing
under and by virtue of Title 8, Chapter 1 of the Delaware Code of 1953, does
hereby certify as follows:
FIRST: The Certificate of Incorporation of the Corporation is hereby
amended by deleting Article I of the Restated Certificate of Incorporation in
its entirety and by substituting in lieu of said Article the following new
Article I:
ARTICLE I
NAME
The name of the Corporation is Amerihost Properties, Inc.
SECOND: The amendment to the Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, America Pop, Inc. has caused its corporate seal to be
hereunto affixed and the Certificate to be signed by its President and
Secretary, this 9th day of September, 1987.
AMERICA POP, INC.
By: /s/ H. Andrew Torchia
--------------------------------------
H. Andrew Torchia, President
By: /s/ Michael P. Holtz
--------------------------------------
Michael P. Holtz, Secretary
ATTEST
THIRD CERTIFICATE OF AMENDMENT
OF
THE RESTATED CERTIFICATE OF INCORPORATION
OF
AMERIHOST PROPERTIES, INC.
(Pursuant to Section 242 of Title 8,
Chapter 1 of the Delaware Code of 1953)
Amerihost Properties, Inc. (the "Corporation"), a corporation organized and
existing under and by virtue of Title 8, Chapter 1 of the Delaware Code of 1953,
does hereby certify as follows:
FIRST: The Certificate of Incorporation of the Corporation is hereby
amended by deleting Article Fourth of the Restated Certificate of Incorporation
in its entirety and by substituting in lieu of said Article the following new
Article Fourth:
ARTICLE FOURTH
Capital Stock Classes
---------------------
The total number of shares of all shares of capital stock which the
Corporation has the authority to issue is 5,000,000 shares of Common Stock
(Common Stock), $0.005 par value per share.
III. Common Stock
1. Dividends.
The holders of the Common Stock are entitled to receive, to the extent
permitted by law, such dividends as may be declared from time to time by the
Board of Directors.
2. Liquidation.
In the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets of winding up of the Corporation, after distribution in
full of the preferred amounts, if any, holders of common Stock shall be entitled
to receive all of the remaining assets of the Corporation of whatever kind
available for distribution to stockholders ratably in proportion to the number
of shares of Common Stock held by them respectively. The Board of Directors may
distribute in kind to the holders of Common Stock such remaining assets of the
Corporation or may sell, transfer or otherwise dispose of all or any part of
such remaining assets to any other corporation, trust or other entity and
receive payment therefor in cash, stock or obligations of such other
corporation, trust or other entity, or any combination thereof, and may sell all
or part of the consideration so received and distribute any balance thereof in
kind to holders of Common Stock. The merger or consolidation of the Corporation
into or with any other corporation, or the merger of any other corporation into
it, or any purchase or redemption of shares of stock of the Corporation of any
class, shall not be deemed to be a dissolution, liquidation or winding up of the
Corporation for the purposes of this paragraph.
3. Voting Rights.
Except as may be otherwise required by law or this Certificate of
Incorporation, each holder of Common Stock has one non-cumulative vote in
respect of each of stock held by him of record on the books of the Corporation
on all matters voted upon by the stockholders.
IV. Other Provisions
1. Preemptive Rights.
No stockholder shall have any preemptive rights to subscribe to an
additional issue of stock of any class or series or to any securities of the
Corporation convertible into such stock.
2. Changes in Authorized Capital Stock.
Any amendment to this Certificate of Incorporation which increases or
decreases the authorized capital stock of any class or classes may be adopted by
the affirmative vote of the holders of a majority of the outstanding shares of
the voting stock of the Corporation.
SECOND: The amendment to the Certificate of Incorporation herein certified
has been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware and is effective as of October
16, 1989.
IN WITNESS WHEREOF, Amerihost Properties, Inc. has caused its corporate
seal to be hereunto affixed and the Certificate to be signed by its President
and Secretary, this 6th day of April, 1990.
AMERIHOST PROPERTIES, INC.
By: /s/ Michael P. Holtz
--------------------------------------
Michael P. Holtz, President
By: /s/ Russell J. Cerqua
--------------------------------------
Russell J. Cerqua, Secretary
FOURTH CERTIFICATE OF AMENDMENT
OF
THE RESTATED CERTIFICATE OF INCORPORATION
OF
AMERIHOST PROPERTIES, INC.
(Pursuant to Section 242 of Title 8,
Chapter 1 of the Delaware Code of 1953)
AMERIHOST PROPERTIES, INC. (the "Corporation"), a corporation organized and
existing under and by virtue of Title 8, Chapter 1 of the Delaware Code of 1953,
DOES HEREBY CERTIFY:
FIRST: The Board of Directors of the Corporation adopted a resolution
proposing that the Restated Certificate of Incorporation of the Corporation be
amended to increase the number of authorized shares of common stock to
15,000,000, $0.005 par value per share, and to authorize 100,000 shares of
Preferred Stock without par value. The Preferred Stock may be issued in series
and the Board of Directors shall determine the voting powers, designations,
preferences and relative, participating, optional or other special rights and
the qualifications, limitations or restrictions thereof in accordance with
Section 151 of the Delaware General Corporation Law.
SECOND: At a special meeting of the shareholders held on May 15, 1990 upon
notice in accordance with Section 222 of the Delaware General Corporation Law, a
majority of the outstanding stock was voted in favor of the resolutions of the
Board of Directors.
THIRD: The Certificate of Incorporation of the Corporation is hereby
amended by deleting Article Fourth of the Restated Certificate of Incorporation
in its entirety and substituting therefor the following new Article Fourth:
"ARTICLE FOURTH
Capital Stock Classes
---------------------
V. Common Stock
The total number of shares of Common Stock which the Corporation has
authority to issue is 15,000,000 shares, $0.005 par value per share.
1. Dividends.
The holders of the Common Stock are entitled to receive, to the extent
permitted by law, such dividends as may be declared from time to time by the
Board of Directors.
2. Liquidation.
In the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets or winding up of the Corporation, after distribution in
full of the preferred amounts, if any, holders of Common Stock shall be entitled
to receive all of the remaining assets of the Corporation of whatever kind
available for distribution to stockholders ratably in proportion to the number
of shares of Common Stock held by them respectively. The Board of Directors may
distribute in kind to the holders of Common Stock such remaining assets of the
Corporation or may sell, transfer or otherwise dispose of all or any part of
such remaining assets to any other corporation, trust or other entity and
receive payment therefor in cash, stock or obligations of such other
corporation, trust or other entity, or any combination thereof, and may sell all
or part of the consideration so received and distribute any balance therefor in
kind to holders of Common Stock. The merger or consolidation of the corporation
into or with any other corporation, or the merger of any other corporation into
it, or any purchase or redemption of shares of stock of the Corporation of any
class, shall not be deemed to be a dissolution, liquidation or winding up of the
Corporation for the purposes of this paragraph.
3. Voting Rights.
Except as may be otherwise required by law or this Certificate of
Incorporation, each holder of Common Stock has one non-cumulative vote in
respect of each of stock held by him of record on the books of the Corporation
on all matters voted upon by the stockholders.
VI. Preferred Stock
The Corporation shall have authority to issue 100,000 shares of Preferred
Stock without par value. The Preferred Stock may be issued in series and the
Board of Directors shall determine the voting powers, designations, preferences
and relative, participating, optional or other special rights and the
qualifications, limitations or restrictions thereof in accordance with Section
151 of the Delaware General Corporation Law.
VII. Other Provisions
1. Preemptive Rights.
No stockholder shall have any preemptive rights to subscribe to an
additional issue of stock of any class or series or to any securities of the
Corporation convertible into such stock.
2. Changes in Authorized Capital Stock.
Any amendment to this Certificate of Incorporation which increases or
decreases the authorized capital stock of any class or classes may be adopted by
the affirmative vote of the holders of a majority of the outstanding shares of
the voting stock of the Corporation."
FOURTH: The foregoing amendment has been duly adopted in accordance with
the provisions of Section 242 of the delaware General Corporation Law.
IN WITNESS WHEREOF, AMERIHOST PROPERTIES, INC. has caused this Certificate
to be signed by its President and Secretary this 31st day of May, 1990.
AMERIHOST PROPERTIES, INC.
By: /s/ Michael P. Holtz
--------------------------------------
Michael P. Holtz, President
ATTEST:
By: /s/ Russell J. Cerqua
--------------------------------------
Russell J. Cerqua, Secretary
FIFTH CERTIFICATE OF AMENDMENT
OF
THE RESTATED CERTIFICATE OF INCORPORATION
OF
AMERIHOST PROPERTIES, INC.
(Pursuant to Section 242 of Title 9,
Chapter 1 of the Delaware Code of 1953)
AMERIHOST PROPERTIES, INC. (the "Corporation"), a corporation organized and
existing under and by virtue of Title 8, Chapter 1 of the Delaware Code of 1953,
DOES HEREBY CERTIFY:
FIRST: The Board of Directors of the Corporation adopted a resolution
proposing that the Restated Certificate of Incorporation of the Corporation be
amended to increase the number of authorized shares of common stock to
25,000,000, $0.005 par value per share.
SECOND: At a special meeting of the shareholders held on August 29, 1996
upon notice in accordance with Section 222 of the Delaware General Corporation
Law, a majority of the outstanding stock was voted in favor of the resolutions
of the Board of Directors.
THIRD: The Certificate of Incorporation of the Corporation is hereby
amended by deleting Article Fourth of the Restated Certificate of Incorporation
in its entirety and substituting therefor the following new Article Fourth:
"ARTICLE FOURTH
Capital Stock Classes
---------------------
VIII. Common Stock
The total number of shares of Common Stock which the Corporation has
authority to issue is 25,000,000 shares, $0.005 par value per share.
1. Dividends.
The holders of the Common Stock are entitled to receive, to the extent
permitted by law, such dividends as may be declared from time to time by the
Board of Directors.
2. Liquidation.
In the event of the voluntary or involuntary liquidation, dissolution,
distribution of assets or winding up of the Corporation, after distribution in
full of the preferred amounts, if any, holders of Common Stock shall be entitled
to receive all of the remaining assets of the Corporation of whatever kind
available for distribution to stockholders ratably in proportion to the number
of shares of Common Stock held by them respectively. The Board of Directors may
distribute in kind to the holders of Common Stock such remaining assets of the
Corporation or may sell, transfer or otherwise dispose of all or any part of
such remaining assets to any other corporation, trust or other entity and
receive payment therefor in cash, stock or obligations of such other
corporation, trust or other entity, or any combination thereof, and may sell all
or part of the consideration so received and distribute any balance therefor in
kind to holders of Common Stock. The merger or consolidation of the corporation
into or with any other corporation, or the merger of any other corporation into
it, or any purchase or redemption of shares of stock of the Corporation of any
class, shall not be deemed to be a dissolution, liquidation or winding up of the
Corporation for the purposes of this paragraph.
3. Voting Rights.
Except as may be otherwise required by law or this Certificate of
Incorporation, each holder of Common Stock has one non-cumulative vote in
respect of each share of stock held by him of record on the books of the
Corporation on all matters voted upon by the stockholders.
IX. Preferred Stock
The Corporation shall have authority to issue 100,000 shares of Preferred
Stock without par value. The Preferred Stock may be issued in series and the
Board of Directors shall determine the voting powers, designations, preferences
and relative, participating, optional or other special rights and the
qualifications, limitations or restrictions thereof in accordance with Section
151 of the Delaware General Corporation Law.
X. Other Provisions
1. Preemptive Rights.
No stockholder shall have any preemptive rights to subscribe to an
additional issue of stock of any class or series or to any securities of the
Corporation convertible into such stock.
2. Changes in Authorized Capital Stock.
Any amendment to this Certificate of Incorporation which increases or
decreases the authorized capital stock of any class or classes may be adopted by
the affirmative vote of the holders of a majority of the outstanding shares of
the voting stock of the Corporation."
FOURTH: The foregoing amendment has been duly adopted in accordance with
the provisions of Section 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, AMERIHOST PROPERTIES, INC. has caused this Certificate
to be signed by its President and Secretary this 10th day of October, 1996.
AMERIHOST PROPERTIES, INC.
By: /s/ Michael P. Holtz
--------------------------------------
Michael P. Holtz, President
ATTEST:
By: /s/ Russell J. Cerqua
--------------------------------------
Russell J. Cerqua, Secretary
Exhibit 5
December 27, 1996
Board of Directors
Amerihost Properties, Inc.
2400 East Devon Avenue,
Suite 280
Des Plaines, Illinois 60018
RE: Registration Statement on Form S-8
2,183,083 Common Shares (par value $.005) to be issued pursuant to
Amerihost Properties, Inc. 1996 Omnibus Incentive Stock Plan,
1996 Stock Option Plan for Nonemployee Directors and certain other
Stock Option Plans for Key Employees (collectively, the "Plans")
Gentlemen:
You have requested our opinion in connection with the above-referenced
Registration Statement on Form S-8 (the "Registration Statement") of Amerihost
Properties, Inc. (the "Company"), to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, to register 2,183,083
shares of the common stock of the Company, $.005 par value (the "Common Stock"),
which may be issued pursuant to the Plans.
We have examined or considered:
1. A copy of the Company's Restated Certificate of Incorporation, as
amended.
2. The By-Laws of the Company.
3. Telephonic confirmation of the Secretary of State of Delaware, as
of a recent date, as to the good standing of the Company in that state.
4. Copies of resolutions duly adopted by the Board of Directors of
the Company relating to the Plans.
5. Copies of the Plans and the forms of option underlying such Plans.
In addition to the examination outlined above, we have conferred with
various officers of the Company and have ascertained or verified, to our
satisfaction, such additional facts as we deemed necessary or appropriate for
the purposes of this opinion. In our examination, we have assumed the
authenticity of all documents submitted to us as originals, the conformity to
the original documents of all documents submitted to us as copies, the
genuineness of all signatures on documents reviewed by us and the legal capacity
of natural persons.
Based on the foregoing, we are of the opinion that all corporate
proceedings necessary for the authorization, issuance and delivery of the Common
Stock under the Plans have been duly taken and upon acquisition pursuant to the
terms of the Plans, the Common Stock will be duly authorized, legally and
validly issued, fully paid and nonassessable.
Members of our firm are admitted to the practice of law in the State of
Illinois and we express no opinion as to the laws of any jurisdiction other than
the laws of the State of Illinois , the General Corporation Law of the State of
Delaware and the laws of the United Stated of America. We hereby consent to the
references to our firm in the Registration Statement and to the filing of this
opinion by the Company as an Exhibit to the Registration Statement. In giving
this consent, we do not hereby admit that we come within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
McDERMOTT, WILL & EMERY
Exhibit 23(b)
CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Amerihost Properties, Inc. 1996 Omnibus
Incentive Stock Plan, the Amerihost Properties, Inc. 1996 Stock Option Plan for
Nonemployee Directors and certain other Stock Option Plans for Key Personnel of
our report dated February 29, 1996 relating to the consolidated financial
statements of Amerihost Properties, Inc. included in the Annual Report on Form
10-K for the year ended December 31, 1995.
BDO Seidman, LLP
Chicago, Illinois
December 27, 1996
