EXHIBIT 4.4
AMENDMENT NO. 1 TO
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amendment No. 1 (this "AMENDMENT"), dated as of as of October 27, 2003, to
the Amended And Restated Stockholders Agreement, dated as of July 10, 1998, by
and among Candlewood Hotel Company, Inc., a Delaware corporation (the
"COMPANY"), Doubletree Corporation, a Delaware corporation, the Warren D. Fix
Family Partnership, L.P., Jack P. DeBoer and the other entities set forth on the
signature pages thereto (the "STOCKHOLDERS AGREEMENT"). In consideration of the
mutual promises contained herein, and for other good and valuable consideration,
the receipt of which is hereby confirmed by the parties hereto, the parties to
this Amendment hereby agree to amend the Stockholders Agreement, in accordance
with Section 4.4 of the Stockholders Agreement, as follows:
1. Board Nominations. Section 2.1 of the Stockholders Agreement is
hereby deleted and replaced in its entirety with the following:
"2.1 Board Nominations. The Board of the Company shall be
composed of five (5) members. With respect to such five (5) members,
the Company and the Holders have agreed (i) that the Series A Purchaser
Group shall be entitled, through a nominating committee or other
procedure adopted by the Board, to designate for nomination by the
Board two (2) nominees for election to the Board, (ii) that the Series
B Purchaser Group shall be entitled, through a nominating committee or
other procedure adopted by the Board, to designate for nomination by
the Board one (1) nominee for election to the Board, and (iii) that the
Doubletree Holders together with the DeBoer/Fix Holders shall be
entitled, through a nominating committee or other procedure adopted by
the Board, to designate for nomination by the Board two (2) nominees
for election to the Board (one (1) of whom shall be an independent
director). Immediately upon the closing of the Transactions (as defined
in Section 2 below), the Board of the Company shall be reduced to five
(5) members and to the extent that any Holders wish to appoint or
replace any of their designees to the Board, as permitted under this
Section 2.1, at such time, the Board shall immediately designate any
such designees and replacements."
2. Effectiveness. This Amendment shall not take effect unless and until
(i) the transactions contemplated by the Asset Purchase and Sale Agreement,
dated as of October 27, 2003, by and among the Company, Candlewood Hotel Company
LLC, a Delaware limited liability company and Six Continents Hotels, Inc., a
Delaware corporation and (ii) the transactions contemplated by the Purchase and
Sale Agreement, dated as of October 27, 2003, by and among the Company and
certain of its affiliates, JPD Corporation, a Kansas corporation and Hospitality
Properties Trust, a Maryland real estate investment trust, (collectively, the
"TRANSACTIONS") have closed, and shall thereupon become effective immediately
upon closing without any further action required by any party. If the
Transactions do not close, this Amendment shall be of no force or effect.
3. Further Assurances. The Company and each of the parties hereto agree
to take all action and to execute, deliver and file, or cause to be executed,
delivered and filed, any and all documents, instruments and filings necessary to
give effect to this Amendment, including
causing the Company to adopt all necessary or desirable amendments to the
By-laws of the Company.
4. Other Terms Not Modified or Amended. This Amendment shall not
constitute an amendment or waiver of any other provision of the Stockholders
Agreement not expressly referred to herein. Except as expressly set forth
herein, the terms and conditions of the Stockholders Agreement remain in full
force and effect without modification or amendment.
5. Governing Law. THIS AMENDMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE
AND TO BE ENTIRELY PERFORMED WITHIN SUCH STATE.
6. Counterparts. This Amendment may be executed simultaneously in two
or more separate counterparts, all of which shall be deemed but one and the same
instrument and each of which shall be deemed an original, and it shall not be
necessary in making proof of this Amendment to produce or account for more than
one such counterpart.
SIGNATURES FOLLOW ON NEXT PAGE.
2
IN WITNESS WHEREOF, the parties set forth below have signed this
Amendment as of the date first hereinabove written.
CANDLEWOOD HOTEL COMPANY, INC.
By: /s/ Jack P. DeBoer
--------------------------------
Name: Jack P. DeBoer
Title: Chief Executive Officer
DOUBLETREE CORPORATION
By:_________________________________
Name:
Title:
Signature page to Amendment No. 1 to
Amended and Restated Stockholders Agreement
WARREN D. FIX FAMILY
PARTNERSHIP, L.P.
By: /s/ Warren D. Fix
--------------------------------
Name: Warren D. Fix
Title: General Partner
/s/ Warren D. Fix
------------------------------------
Warren D. Fix
JACK P. DeBOER, for himself and on behalf
of the ALEXANDER DeBOER TRUST
DATED MARCH 14, 1994 and the
CHRISTOPHER SCOTT DeBOER TRUST
DATED MARCH 14, 1995
/s/ Jack P. DeBoer
------------------------------------
Name: Jack P. DeBoer
OLYMPUS GROWTH FUND II, L.P.
By: OGP II, L.P., its General Partner
By: RSM, L.L.C., its General Partner
By: /s/ Robert S. Morris
--------------------------------
Name: Robert S. Morris
Title: General Partner
Signature page to Amendment No. 1 to
Amended and Restated Stockholders Agreement
OLYMPUS EXECUTIVE FUND, L.P.
By: OEF, L.P., its General Partner
By: RSM, L.L.C., its General Partner
By: /s/ Robert S. Morris
----------------------------------
Name: Robert S. Morris
Title: General Partner
JPMORGAN CHASE BANK, FORMERLY
KNOWN AS MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, AS TRUSTEE OF
THE COMMINGLED PENSION TRUST FUND
(MULTI-MARKET SPECIAL INVESTMENT
FUND II) OF JPMORGAN CHASE BANK
By: /s/ Joan Huggins
----------------------------------
Name: Joan Huggins
Title: Vice President
JPMORGAN CHASE BANK, FORMERLY
KNOWN AS MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, AS TRUSTEE OF
THE MULTI-MARKET SPECIAL INVESTMENT
TRUST FUND OF JPMORGAN CHASE BANK
By: /s/ Joan Huggins
----------------------------------
Name: Joan Huggins
Title: Vice President
Signature page to Amendment No. 1 to
Amended and Restated Stockholders Agreement
JPMORGAN CHASE BANK, FORMERLY
KNOWN AS MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, AS INVESTMENT
MANAGER AND AGENT FOR THE
ALFRED P. SLOAN FOUNDATION (MULTI-
MARKET ACCOUNT)
By: /s/ Joan Huggins
----------------------------------
Name: Joan Huggins
Title: Vice President
J.P. MORGAN PARTNERS (SBIC), LLC,
FORMERLY KNOWN AS CHASE VENTURE
CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, its General
Partner
By: /s/ David Gilbert
-------------------------------
Name: David Gilbert
Title: Managing Director
PRIVATE EQUITY INVESTORS III, L.P.
By: Rohit M. Desai Associates III, LLC
General Partner
By: /s/ Frank J. Pados, Jr.
-------------------------------
Name: Frank J. Pados, Jr.
Title: Attorney-In-Fact
Signature page to Amendment No. 1 to
Amended and Restated Stockholders Agreement
EQUITY-LINKED INVESTORS-II
By: Rohit Desai Associates-II
General Partner
By: /s/ Frank J. Pados
------------------------------
Name: Frank J. Pados, Jr.
Title: Attorney-In-Fact
LNR CANDLEWOOD HOLDINGS, INC.
By:___________________________________
Name:
Title:
DELAWARE STATE EMPLOYEES'
RETIREMENT FUNDS
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ Robert J. Cresci
--------------------------------
Name: Robert J. Cresci
Title: Managing Director
Signature page to Amendment No. 1 to
Amended and Restated Stockholders Agreement
DECLARATION OF TRUST FOR THE
DEFINED BENEFIT PLAN OF ZENECA
HOLDINGS INC.
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ Robert J. Cresci
--------------------------------
Name: Robert J. Cresci
Title: Managing Director
DECLARATION OF TRUST FOR THE
DEFINED BENEFIT PLAN OF ICI
AMERICAN HOLDINGS INC.
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ Robert J. Cresci
--------------------------------
Name: Robert J. Cresci
Title: Managing Director
J.W. McCONNELL FAMILY TRUST
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ Robert J. Cresci
--------------------------------
Name: Robert J. Cresci
Title: Managing Director
Signature page to Amendment No. 1 to
Amended and Restated Stockholders Agreement
ADVANCE CAPITAL PARTNERS, L.P.
By: Advance Capital Associates, L.P.
By: Advance Capital Management, LLC
By:_______________________________
Name:
Title:
ADVANCE CAPITAL OFFSHORE
PARTNERS, L.P.
By: Advance Capital Offshore Associates,
LDC
By: Advance Capital Associates, L.P.
By: Advance Capital Management, LLC
By:_______________________________
Name:
Title:
ALLIED CAPITAL CORPORATION
By:_______________________________
Name:
Title:
Signature page to Amendment No. 1 to
Amended and Restated Stockholders Agreement
ALLIED CAPITAL CORPORATION II
By:_______________________________
Name:
Title:
THE FFJ 1997 NOMINEE TRUST
By:_______________________________
Name:
Title:
THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK
By:_______________________________
Name:
Title:
J. ROMEO & CO.
By:_______________________________
Name:
Title:
HARBOR INVESTMENTS LTD.
By: Strong Capital Management, Inc.,
its Investment Advisor
By:_______________________________
Name:
Title:
Signature page to Amendment No. 1 to
Amended and Restated Stockholders Agreement
STRONG SPECIAL INVESTMENT LIMITED
PARTNERSHIP
By: Strong Capital Management, Inc., its
General Partner
By:_______________________________
Name:
Title:
STRONG QUEST LIMITED PARTNERSHIP
By: Strong Capital Management, Inc., its
General Partner
By:_______________________________
Name:
Title:
Signature page to Amendment No. 1 to
Amended and Restated Stockholders Agreement