-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OzAPe/TWHq5V/mnDK3e6Oh20EXyUJqofRdpwVJqK87xZoYRP+FxagtXBq0HwkRSk BRC7cDFBJmkEvRbtnPM3hg== 0000914760-96-000280.txt : 19961231 0000914760-96-000280.hdr.sgml : 19961231 ACCESSION NUMBER: 0000914760-96-000280 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19961227 EFFECTIVENESS DATE: 19961227 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERIHOST PROPERTIES INC CENTRAL INDEX KEY: 0000778423 STANDARD INDUSTRIAL CLASSIFICATION: HOTELS & MOTELS [7011] IRS NUMBER: 363312434 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-18887 FILM NUMBER: 96686988 BUSINESS ADDRESS: STREET 1: 2400 E DEVON AVE STE 280 CITY: DES PLAINES STATE: IL ZIP: 60018 BUSINESS PHONE: 7082984500 MAIL ADDRESS: STREET 1: 2400 E DEVON AVE STREET 2: SUITE 280 CITY: DES PLAINES STATE: IL ZIP: 60018 FORMER COMPANY: FORMER CONFORMED NAME: AMERICA POP INC DATE OF NAME CHANGE: 19871111 S-8 1 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). EX-4 2 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 EX-5 3 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 EX-23 4 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 -----END PRIVACY-ENHANCED MESSAGE-----