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EXHIBIT 10.36
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement") dated as of
September 30, 1996 among Doubletree Corporation, a Delaware corporation
(together with its subsidiaries, "Doubletree"), Jack P. DeBoer ("DeBoer"), an
individual, the Alexander John DeBoer Trust dated March 14, 1995 (the "Alexander
Trust") and the Christopher Scott DeBoer Trust dated March 14, 1995 (the
"Christopher Trust") (collectively, the "Trusts")(DeBoer and the Trusts
constituting the shareholders of JPD Corporation, a Kansas corporation ("JPD
Corporation")) and the Warren D. Fix Family Partnership, L.P., a Kansas limited
partnership (the "Fix Partnership")(collectively, the "Initial Stockholders").
W I T N E S S E T H:
WHEREAS, the membership interests in Candlewood Hotel Company,
LLC, a Delaware limited liability Company ("Candlewood LLC") and certain
subsidiary limited liability companies and the stock of JPD Corporation are
proposed to be transferred and assumed by Candlewood Hotel Company, Inc., a
Delaware corporation ("Candlewood" or the "Company") (the "Initial
Reorganization");
WHEREAS, in connection with the Initial Reorganization,
Doubletree, JPD Corporation and the Fix Partnership entered into an
Incorporation and Registration Rights Agreement dated as of September 1, 1996
(the "Registration Rights Agreement") providing, among other things, the parties
with certain rights, including the right, under certain circumstances to
transfer their respective interests in Candlewood LLC and JPD Corporation to
Candlewood in exchange for shares of common stock of Candlewood and to register
their respective shares of common stock of Candlewood so acquired pursuant to
the Securities Act of 1933, as amended (the "Securities Act);
WHEREAS, pursuant to the Registration Rights Agreement, the
Members of Candlewood LLC have approved the Reorganization and the filing by the
Company of a registration statement under the Securities Act, as a result of
which (a) the Company has been incorporated having authorized capital stock
consisting of 100,000,000 shares of Common Stock, par value $.01 per share (the
"Candlewood Common Stock") , and 5,000,000 shares of Preferred Stock, par value
$.01 per share, (b) 5,175,000 shares of Candlewood Common Stock will be issued
and outstanding, of which 2,587,500 shares will be owned of record and
beneficially by Doubletree, 2,111,399 shares will be owned of record and
beneficially by DeBoer, 43,988 shares will be owned of record and beneficially
by the Alexander Trust, 43,988 shares will be owned of record and beneficially
by the Christopher Trust and 388,125 shares will be owned of record and
beneficially by the Fix Partnership;
WHEREAS, the Registration Rights Agreement, as amended,
requires that the Initial Stockholders execute and deliver a stockholders
agreement in the form hereof;
NOW, THEREFORE, in consideration of the premises and
undertakings hereinafter set forth, the parties hereto agree as follows:
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ARTICLE I. DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions. As used in this Agreement:
"Affiliate" of a Holder means any Person, other than
Candlewood, controlling, controlled by or under common control with such Holder.
"Annual Election" means the annual election of Directors held
in accordance with the By-laws, including any such election by stockholders'
consent.
"Board" means the Board of Directors of Candlewood.
"By-laws" mean the By-laws of Candlewood.
"Candlewood Entity" means Candlewood and each of its
Subsidiaries.
"Certificate of Incorporation" means the Restated Certificate
of Incorporation of Candlewood in the form filed with the Delaware Secretary of
State on October 16, 1996.
"DeBoer/Fix Director" means each Initial DeBoer/Fix Director
and each Person nominated by the DeBoer/Fix Holders pursuant to Section 2 and
elected as a Director.
"DeBoer/Fix Holders" means DeBoer, the Trusts and the Fix
Partnership (so long as they are each a Holder) and each Permitted Transferee,
other than Candlewood, who becomes a Holder by acquiring any DeBoer/Fix Shares
in compliance with Section 4.8.
"DeBoer/Fix Shares" means the shares of Candlewood Common
Stock owned of record and beneficially by DeBoer, the Trusts and the Fix
Partnership on the Effective Date.
"DeBoer Holders" means DeBoer and the Trusts (so long as they
are each a Holder) and each Permitted Transferee of DeBoer, other than
Candlewood, who becomes a Holder by acquiring any DeBoer Shares in compliance
with Section 4.8.
"DeBoer Shares" means the shares of Candlewood Common Stock
owned of record and beneficially by DeBoer and the Trusts on the Effective Date.
"Director" means a director of Candlewood.
"Disposition" has the meaning given to such term in Section
3.1.
"Doubletree Director" means any Person nominated by the
Doubletree Holders and elected as a Director.
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"Doubletree Holders" means Doubletree (so long as it is a
Holder) and each Permitted Transferee of Doubletree, other than Candlewood, who
becomes a Holder by acquiring any Doubletree Shares in compliance with Section
4.8.
"Doubletree Shares" means the Shares of Candlewood Common
Stock owned of record and beneficially by Candlewood on the Effective Date.
"Effective Date" means the date on which the Doubletree
Shares, the DeBoer Shares and the Fix Partnership Shares were issued to
Doubletree, DeBoer, the Trusts and the Fix Partnership.
"Fix Partnership Holders" means the Fix Partnership (so long
as it is a Holder) and each Permitted Transferee of the Fix Partnership, other
than Candlewood, who becomes a Holder by acquiring any Fix Partnership Shares in
compliance with Section 4.8.
"Fix Partnership Shares" means the shares of Candlewood Common
Stock owned of record and beneficially by the Fix Partnership on the Effective
Date.
"Holder" means a record and beneficial owner of any Subject
Shares.
"Initial Doubletree Directors" means Richard Ferris and Peter
Ueberroth.
"Initial DeBoer/Fix Directors" means Jack DeBoer and Warren
Fix.
"Permitted Transferee" of a Holder means (i) a successor to
such Holder by operation of law pursuant to a statutory merger, consolidation,
dissolution or liquidation (ii) a purchaser of all or substantially all of such
Holder's assets, or (iii) a Person owning, directly or indirectly, a majority of
the Voting securities or other comparable equity interests of such Holder, a
Person under common control with such Person (including, in the case of an
individual, a family member or a trust controlled by a family member) or a
Person of which such Holder owns, directly or indirectly, a majority of the
outstanding Voting Securities or other comparable equity interests, or (iv) or a
successor to such Holder by will or through the laws of descent, or through a
gift or other contribution made in anticipation of the death of such Holder;
provided, however, that in each case the successor, purchaser or Person referred
to in Clauses (i), (ii) or (iii) of this definition was an Affiliate of such
Holder prior to such merger, consolidation, dissolution, liquidation, purchase
of assets or acquisition of Voting Securities or other comparable equity
interests and, in each case referred to in clauses (i), (ii) or (iii) of this
definition, the Permitted Transferee has become a party to and bound by this
Agreement as to all Subject Shares then being transferred to it in compliance
with by Section 4.8. "Permitted Transferee" includes successive transferees in
transactions described in the preceding sentence.
"Person" means an individual, partnership, corporation,
unincorporated organization or association, trust, government or department,
unit or political subdivision of a government, or other entity.
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"Public Sale" means a sale of Candlewood Common Stock by
Candlewood and/or by one or more Holders of Subject Shares to one or more
underwriters for distribution pursuant to an effective registration statement
under the Securities Act in accordance with the Registration Rights Agreement.
"Reorganization" means any merger or consolidation of
Candlewood with or into any other Person, any recapitalization or
reclassification of capital stock or other equity interests of Candlewood or any
sale of all or substantially all of the assets of Candlewood in any one or
series of related transactions other than in connection with the Initial
Reorganization.
"Subject Shares" means the Doubletree Shares, the DeBoer
Shares and the Fix Partnership Shares; provided, however, that at all times,
such term shall include all Subject Shares that have been transferred by a
Holder to a Permitted Transferee of such Holder. Notwithstanding the foregoing,
upon (A) the Disposition of any Subject Shares pursuant to a Public Sale to any
Person or (B) the Disposition of any Subject Shares other than pursuant to a
Public Sale after the termination of Section 3.1 (as provided in Section 4.7(a))
to any Person other than a Permitted Transferee of the Holder thereof, the
shares so cancelled or disposed of shall cease to be Subject Shares and
thereafter shall not be subject to any of the terms and conditions of this
Agreement (other than Section 4.1(d)).
"Subsidiaries" means each corporation, partnership, joint
venture or other entity in which Candlewood owns, directly or indirectly, more
than 50% of the outstanding Voting Securities.
"Voting Securities" means shares of capital stock or equity
interests the holders of which are at the time entitled to elect a majority of
the issuer's board of directors or other comparable body.
Additional terms are defined where used in this Agreement.
Section 1.2. Interpretation. Each definition in this Agreement
includes the singular and the plural, and references to the neuter gender
include the masculine and feminine whenever appropriate. References to any
statute mean such statute as amended at the time and include any successor
legislation, and references to a business day mean any day other than Saturday,
Sunday or legal holiday where Candlewood's principal office is located. The
words "herein", "hereof" and "hereunder" refer to this Agreement as a whole. The
headings of the Articles and Sections are for convenience of reference only and
shall not affect the meaning or interpretation of this Agreement. Unless the
context otherwise requires, references to Articles, Sections and Subsections
mean the Articles, Sections and Subsections of this Agreement.
Section 1.3. Changes in Candlewood Common Stock. If during the
term of this Agreement the outstanding shares of Candlewood Common Stock shall
be changed into a different number of shares or a different class or classes of
shares by reason of any split-up, combination, reclassification or other
recapitalization, or if a stock dividend shall be declared on shares of
Candlewood Common Stock with a record date during such term, the terms of this
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Agreement (including its definitions) shall be appropriately modified to give
effect to such occurrence.
Section 1.4. Partial Invalidity. Each provision of this
Agreement shall be interpreted so as to render it valid and enforceable under
applicable law. A finding that any such provision is invalid or unenforceable in
any jurisdiction or in any particular circumstance shall not affect its validity
or enforceability under the laws of any other jurisdiction or in any other
circumstances.
Section 1.5. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware applicable
to agreements made and to be performed entirely in such State.
ARTICLE II. VOTING OF SUBJECT SHARES AND GOVERNANCE
Section 2.1. Composition of Board. (a) On the Effective Date
and until the completion of a Public Sale, the number of Directors shall be
four, of which two shall be Doubletree Directors and two shall be DeBoer/Fix
Directors.
(b) From and after the initial Public Sale, the following
provisions shall be applicable:
(i) The number of Directors comprising the whole Board shall
initially be four, subject to increase as provided in Section
2.1(b)(ii). Commencing with the first Annual Election after the initial
Public Sale, the number of Directors comprising the whole Board shall
be determined as provided in the By-laws.
(ii) Not later than December 31, 1996, the number of Directors
comprising the whole Board shall be increased-to at least 6 Directors,
at least two of whom shall be individuals who are not nominated as
provided in Sections 2.3 through 2.4, inclusive, and are not otherwise
affiliated with any Holder (the "Unaffiliated Directors"). The initial
Unaffiliated Directors shall be elected by unanimous vote of the
Directors who are then in office; and each Holder shall use its
reasonable best efforts to recruit suitable candidates for election as
the initial Unaffiliated Directors as soon as practicable. Any
successor Unaffiliated Directors shall be recruited by the Holders in
the same manner, approved by unanimous vote of the Directors who are
then in office and elected at an Annual Election in accordance with
this Agreement or, if the election occurs at any time other than an
Annual Election, elected by unanimous vote of the Directors who are
then in office.
(iii) The number of Doubletree Directors shall be the product
of the number of Directors comprising the whole Board who are not
Unaffiliated Directors (the "Affiliated Directors") multiplied by
one-half.
(iv) The number of DeBoer/Fix Directors shall be the product
of the number of Affiliated Directors multiplied by one-half.
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(vi) Notwithstanding the immediately preceding clauses (iii)
and (iv) if there shall be a number of Affiliated Directors which is
not evenly divisible by two, the Doubletree Holders and the DeBoer/Fix
Holders shall agree upon and jointly nominate the additional director.
(c) Each of the Doubletree Holders, DeBoer Holders and Fix
Partnership Holders, agrees to vote its Subject Shares (or sign written consents
in lieu thereof) at each Annual Election, and at all other times when required
to fill a vacancy on the Board, however arising, and to take all such other
action as may be reasonably necessary (including, without limitation, causing
one or more of the Directors nominated by it to be removed or resign promptly
after any change in ownership of Subject Shares), so that the Board shall be
constituted as provided in Section 2.1(a) or (b), as applicable, and to the
extent herein provided shall consist of the appropriate numbers in accordance
with this Section 2.1 of Doubletree Directors and DeBoer/Fix Directors nominated
in accordance with Sections 2.3, and 2.4, as applicable, and (not later than
December 31, 1996) Unaffiliated Directors nominated in accordance with Section
2.1(b)(ii).
Section 2.2. Election of Initial Board. (a) Each of
Doubletree, the Fix Partnership, DeBoer and the Trusts hereby authorize, consent
to and approve the election of each of the Initial Directors and the DeBoer/Fix
Directors as Directors to serve until their respective successors have been duly
elected pursuant to this Agreement, the Certificate of Incorporation, the
By-laws and applicable law.
Section 2.3. Changes in Doubletree Directors. (a) The
Doubletree Holders may designate the individual to fill any vacancy on the Board
resulting from the death, resignation or removal of any Doubletree Director by
giving written notice to Candlewood (which shall promptly forward a copy of such
notice to each Holder). Within not more than 10 days after the notice described
in the preceding sentence is so forwarded, the Holders will use their best
efforts to cause the election to the Board of the nominee named in such notice.
(b) The Doubletree Holders may nominate the individual to
succeed any Doubletree Director who will not stand for re-election, and may
change any such nomination, at any Annual Election by giving written notice to
Candlewood of its nominees as Doubletree Directors not less than 45 days (or, in
the case of unforeseen circumstances, such shorter period as may be permitted by
law) prior to the date fixed for any Annual Election which is scheduled to occur
after the initial Public Sale. If the notice specified in the preceding sentence
is not given within the time required, the incumbent Doubletree Directors shall
be deemed to be the nominees for election as Doubletree Directors at such Annual
Election.
Section 2.4. Changes in DeBoer/Fix Directors. (a) The
DeBoer/Fix Holders may designate the individual to fill any vacancy on the Board
resulting from the death, resignation or removal of any DeBoer/Fix Director by
giving written notice to Candlewood (which shall promptly forward a copy of such
notice to each Holder). Within not more than 10 days after the notice described
in the preceding sentence is so forwarded, the Holders will use their best
efforts to cause the election to the Board of the nominee named in such notice.
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(b) The DeBoer/Fix Holders may nominate the individual to
succeed any DeBoer/Fix Director who will not stand for re-election, and may
change any such nomination, at any Annual Election by giving written notice to
Candlewood of its nominee as DeBoer/Fix Director not less than 45 days (or, in
the case of unforeseen circumstances, such shorter period as may be permitted by
law) prior to the date fixed for any Annual Election which is scheduled to occur
after the initial Public Sale. If the Notice specified in the preceding sentence
is not given within the time required, the incumbent DeBoer/Fix Directors shall
be deemed to be the nominee for election as DeBoer/Fix Directors at such Annual
Election.
Section 2.5. Removal of Directors. A Doubletree Director may
not be removed from the Board except by delivery to Candlewood and all Holders
of a written notice of such removal signed by the Doubletree Holders. A
DeBoer/Fix Director may not be removed from the Board except by delivery to
Candlewood and all Holders of a written notice of such removal signed by the
DeBoer/Fix Holders. Within not more than 10 days after such notice is given,
each of the Holders shall execute and deliver to Candlewood its written consent
to the removal specified in such notice or, if requested by whichever of the
Doubletree Holders or the DeBoer/Fix Holders, shall have given such notice in
accordance with this Section 2.5, shall vote its Subject Shares in favor of such
removal.
Section 2.6. Approvals Required for Certain Corporate Actions.
Subject to Section 4.5, the parties agree that without the written approval of
the Doubletree Holders and the DeBoer/Fix Holders:
(a) Neither the Certificate of Incorporation nor the By-laws
shall be amended;
(b) No Candlewood Entity shall acquire, directly or indirectly
(through a stock or asset purchase or otherwise), any assets, in one or
a series of related transactions with the same or related sellers, for
an aggregate purchase price in excess of $10,000,000;
(c) No Candlewood Entity shall sell, transfer or otherwise
dispose of, directly or indirectly (through a stock or asset sale or
otherwise), any assets outside the ordinary course of business, in one
or a series of related transactions, for an aggregate sale price in
excess of $10,000,000;
(d) No Candlewood Entity shall make any capital expenditure,
or any series of related capital expenditures, in excess of an
aggregate of $10,000,000;
(e) No Candlewood Entity shall purchase, redeem or repurchase
any Subject Shares, any shares of its capital stock or any of its
partnership interests or any shares of capital stock or partnership
interests of any other Candlewood Entity, except for (a) any redemption
or repurchase by a Subsidiary directly or indirectly wholly-owned by
Candlewood of shares of capital stock or partnership interests issued
by such Subsidiary, or (b) except for a repurchase of Subject Shares
pursuant to Section 2(d) of the Registration Rights Agreement.
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(f) Candlewood shall not declare or pay any dividend or
declare or make any other distribution in respect of its capital stock;
(g) No Candlewood Entity shall issue, sell or grant additional
shares of its capital stock or membership interests or options or
warrants exercisable for or securities or other rights convertible into
or exchangeable for shares of its capital stock or partnership
interests, or issue or agree to issue any phantom stock rights, or file
any registration statement (other than pursuant to the demand
registration rights provided in Section 2 of the Registration Rights
Agreement) with respect to the proposed sale of any of the foregoing;
(h) Neither Candlewood nor any Subsidiary not directly or
indirectly wholly-owned by Candlewood shall authorize or consummate any
stock dividend or stock split (except in accordance with the reasonable
recommendations of the managing underwriter for the initial Public Sale
pursuant to the Registration Rights Agreement);
(i) No Candlewood Entity shall incur or assume any
indebtedness for borrowed money, other than indebtedness incurred
solely to refund indebtedness existing on the Effective Date and other
than pursuant to Candlewood's line of credit with GMAC and borrowings
from Doubletree, in excess of $10,000,000 in the aggregate;
(j) No Candlewood Entity shall loan its funds to any other
Person or extend its credit to any other Person other than in the
ordinary course of business;
(k) No Candlewood Entity shall guarantee the obligations of
any other Person, other than guarantees not in excess of $10,000,000
executed in the ordinary course of business;
(l) No Candlewood Entity shall enter into any joint venture
that involves an aggregate investment or receipt of proceeds in excess
of $10,000,000;
(m) No Candlewood Entity shall engage in any business which is
not significantly related to the business that Candlewood is conducting
on the Effective Date;
(n) No Candlewood Entity shall enter into (A) any transaction
or other arrangement not in the ordinary and proper course of business
on an arm's length basis with Doubletree, Mr. Jack DeBoer, Mr. Warren
Fix, JPD Corporation, the Trusts or the Fix Partnership, or any entity
in which any of them or their respective Affiliates has a greater than
5% interest or has a control relationship or (B) any loan to or
management, employment or consulting agreement with any of the
foregoing, except for those arrangements described in the Company's
Registration Statement on Form S-1 relating to the Company's Common
Stock, including purchases and other relations with INNCO and the
guarantee by Doubletree of certain indebtedness incurred by the Company
and its franchisees;
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(o) No Candlewood Entity shall change its accounting
principles or practices (except as required by generally accepted
accounting principles) or hire a firm other than KPMG Peat Marwick to
act as its independent public accountants;
(p) No Candlewood Entity shall establish compensation payable
to any manager, officer, director, employee or other agent if such
compensation as to any one of the foregoing, in the aggregate, would
exceed $500,000 in any year, or establish compensation for Mr. Jack
DeBoer or Mr. Warren Fix if such compensation as to either of them, in
the aggregate, would exceed $300,000 in any year.
(q) No Candlewood Entity shall enter into any other
transaction or other arrangement not in the ordinary course of
business; and
(r) Candlewood shall not consolidate or amalgamate with, or
merge with or into, or acquire all or substantially all of the assets
or control of, any other business organization other than in the course
of the Initial Reorganization; provided, however, that, in the case of
a merger or other combination between Candlewood and Doubletree, such
approval shall not be unreasonably withheld;
(s) No Candlewood Entity shall dissolve, liquidate or wind up
its affairs;
(t) There shall be no increase in the number of members of the
Board, either by amendment to the Certificate of Incorporation, the
By-laws or otherwise, except as provided in Section 2.1.
(u) Candlewood shall not cause or permit any Subsidiary
holding assets representing all or substantially all the assets of
Candlewood and its Subsidiaries, on a consolidated basis (the "Group")
or any group of Subsidiaries holding all or substantially all of such
assets to (A) consolidate or amalgamate with, or merge into, any entity
that is not a member of the Group, (B) sell (in a single transaction or
a series of related transactions) all or substantially all of such
assets to an entity that is not a member of the Group or (C) dissolve,
liquidate or wind up its (or their) affairs; or
(v) No Candlewood Entity shall permit or obligate any
Candlewood Entity or otherwise agree, either individually or as a
consolidated group, to make any decision, or take any action, described
in items (a) through (q) above;
(w) Provided, however, that if at any time either Doubletree
Holders or the DeBoer/Fix Holders, as the case may be, shall own less
than 20% of the outstanding shares of Candlewood Common Stock, all
rights of the Doubletree Holders or the DeBoer/Fix Holders, as the case
may be, under this Section 2.6 shall terminate and be of no further
force or effect; provided further, however, that following the death of
Jack DeBoer, the rights of the Fix Partnership Holders under this
Section 2.6 shall terminate and be of no further force or effect.
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Section 2.7 Purchase Rights. In furtherance and not by way of
limitation of Section 2.6, additional shares of Common Stock of Candlewood, or
securities convertible into or exchangeable for such shares, if such shares or
securities are to be sold for cash, shall be first offered to the Holders of
then outstanding Subject Shares in proportion to the number of such Subject
Shares held by them, respectively, which offer shall be outstanding for a period
of not less than 30 days from receipt of written notice thereof; provided,
however, that Candlewood shall have the right to issue such additional shares or
such securities, without first offering them to such Holders, if such additional
shares or securities are to be sold for cash through an offering to its
employees or to the employees of any Subsidiary for such consideration and upon
such terms and conditions as shall be approved by the Doubletree Holders and the
DeBoer/Fix Holders pursuant to clause (g) of Section 2.6, so long as applicable,
and by the Board; and provided, further, that, except as aforesaid, no Holder
shall have any preemptive or other right to subscribe for or acquire any shares
of capital stock or other securities issued by Candlewood.
Section 2.8. Agent for Affiliated Holders. If a portion or all
of the Subject Shares held by Doubletree, DeBoer, the Trusts or the Fix
Partnership shall be transferred to one or more Permitted Transferees, resulting
in the Subject Shares which were theretofore held by such Holder being held by
more than one Holder, then Doubletree, DeBoer, the Trusts or the Fix
Partnership, as the case may be, shall: (i) act, or shall cause one of such
Holders to act, as agent and proxy for all purposes of this Agreement (including
without limitation the voting of Subject Shares, the nomination of Directors,
the giving of consents, the approval of amendments, the receipt of notices,
etc.) for all of the Doubletree Holders, DeBoer Holders or the Fix Partnership
Holders, as the case may be, and (ii) specify in writing to the other parties
that it (or such other Holder) is to act as such agent and proxy, and thereafter
the other parties shall be entitled to look solely to, and to deal solely with,
the person so specified for all purposes of this Agreement as if such Holder
held all the Subject Shares held by the party providing such notice and its
Permitted Transferees.
Section 2.9. Irrevocable Proxy. The Fix Partnership Holders
and the Trusts hereby appoint DeBoer as its and their proxy to exercise in
DeBoer's sole discretion all rights of the Fix Partnership Holders and the
Trusts to nominate and/or remove each DeBoer/Fix Director and to exercise all
rights pursuant to Section 2.6 hereof. This proxy is coupled with an interest in
Candlewood and shall be irrevocable. Except as set forth below in this
paragraph, this proxy may be invoked by DeBoer at any time by notice to the
other Holders but, unless and until invoked, such rights may be exercised by the
Fix Partnership Holders and the Trusts; provided, however, that upon the death
of Warren D. Fix all such rights shall automatically vest in DeBoer which shall
thereafter have the sole right to exercise all such rights of the Fix
Partnership Holders. Notwithstanding the foregoing, this proxy may not be
invoked or exercised after the death of Jack DeBoer.
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ARTICLE III. RESTRICTIONS ON TRANSFERS OF SUBJECT SHARES;
VOTING AGREEMENTS; AND LIQUIDATION AGREEMENT
Section 3.1. Dispositions Prior to Initial Public Sale. Until
the termination of the provisions of this Section 3.1, no Holder shall (a) sell,
assign, transfer by operation of law or otherwise, pledge, hypothecate, grant
any security interest or other lien in or otherwise dispose of any of its
Subject Shares, or make or permit any indirect transfer of such Subject Shares
through an issuance of such Holder's capital stock or other equity interests
resulting in a direct or indirect change in the beneficial ownership of a
majority of its Voting Securities or other equity interests (a "Disposition"),
or (b) agree or otherwise become obligated to take any action referred to in
clause (a) of this Section 3.1; provided, however, that, subject to Section 4.8,
the restrictions set forth in such clauses (a) and (b) shall not apply to a
Disposition of Subject Shares: (A) to a Permitted Transferee of such Holder,
whether pursuant to a Reorganization or otherwise, (B) in a Public Sale or (C)
sold by Doubletree pursuant to Section 2(d) of the Registration Rights
Agreement; provided, however, that the provisions of this Section 3.1 shall not
apply to Doubletree to the extent that they would limit a change of control of
Doubletree or preclude the hypothecation of the Doubletree Shares to a bank or
other financial institution.
ARTICLE IV. GENERAL PROVISIONS
Section 4.1. Legend on Share Certificates for Subject Shares.
(a) All certificates for Subject Shares which are subject to the terms and
provisions of Article II and/or Article III shall bear the following legend:
The shares represented by this certificate (the "Shares") have
not been registered under the Securities Act of 1933, as
amended, and no sale, transfer or other disposition may be
made of the Shares unless they have been so registered or
Candlewood Hotel Company, Inc. (the "Company") has been
furnished with a legal opinion from a nationally recognized
law firm satisfactory to it that such registration is not
required. The Shares are also subject to certain restrictions
on transfer and requirements as to voting contained in the
Stockholders Agreement dated as of September 30, 1996 among
the Company, the registered holder of the Shares and certain
other stockholders, a copy of which is on file with the
Secretary of the Company.
(b) Upon the termination of this Agreement pursuant to Section
4.5(a), each Holder shall be entitled to receive, in exchange for any
certificate for Candlewood Common Stock bearing the legend set forth in
subsection (a) of this Section 4.1, a certificate bearing a legend containing
only the first sentence of such legend, unless Candlewood shall have determined
(based upon the advice of legal counsel) that such legend is then no longer
required.
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(c) The restrictions on transfer of the Subject Shares
provided in this Agreement shall also be noted in the Candlewood stock register.
(d) If any shares of Candlewood Common Stock shall cease to be
Subject Shares in accordance with this Agreement, any Person acquiring such
shares shall be entitled to receive, in exchange for any certificate for such
shares bearing the legend set forth in subsection (a) of this Section 4.1, a
certificate bearing a legend containing only the first sentence of such legend,
unless Candlewood shall have determined (based upon the advice of legal counsel)
that such legend is then no longer required.
Section 4.2. Notices. All notices, requests or demands
required or permitted by this Agreement: (i) shall be in writing; (ii) shall be
deemed to have been given, forwarded, made or delivered: (x) if delivered in
person or by overnight courier service, when received, (y) if transmitted by
telefax, when so transmitted if evidence of completed transmission is received,
and (z) if sent by prepaid registered or certified mail, return receipt
requested, on the earlier of the date of receipt or the seventh day after it is
mailed; and (iii) shall be addressed: if to Candlewood, at Lakepoint Office
Park, 9342 East Central, Wichita, Kansas 67206, Attention: President (or to such
other address as Candlewood shall furnish by notice given to each Holder), and
if to any Holder, at such Holder's address appearing on the Holder List (as
hereinafter defined).
Section 4.3. Holder List. Candlewood shall maintain a list
(the "Holder List") of the name and address of each Holder and the number of
Subject Shares held by it. Each Holder shall give prompt notice to Candlewood of
any change in the information pertaining to it in the Holder List, but in the
absence of such notice Candlewood and each other Holder may treat the
information reflected in the current Holder List as correct. Candlewood shall
furnish a copy of the Holder List to any Holder upon request.
Section 4.4. Amendments, Waivers and Consents. This Agreement
may be amended only by a document executed (which may be in counterparts) by
Candlewood and all of the Holders. Any Holder may waive the benefit of any
provision of this Agreement, either in a specific instance or generally, by
delivering to Candlewood and each other Holder a consent to such waiver. All
consents required or permitted by this Agreement shall be in writing and signed
by the party to be charged therewith.
Section 4.5. Termination. (a) All provisions of this Agreement
shall terminate as to all Subject Shares on the close of business on the day
before the tenth anniversary of the Effective Date. In the event of a Public
Sale prior to such tenth anniversary, the provisions of Section 3.1 shall
terminate on the date on which such Public Sale is completed. All provisions of
this Agreement shall terminate (prior to such tenth anniversary) on the first
day on which the Subject Shares shall comprise less than a majority of the total
number of shares of Candlewood Common Stock then outstanding. This Agreement or
any provision hereof may be terminated by a document executed in the manner
provided in Section 4.4 for amendments to this Agreement with the same force and
effect as provided therein. Candlewood shall give prompt written notice of any
termination under this Section 4.5(a) to all Holders.
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(b) The termination of this Agreement or any provision hereof
shall not affect any action taken or agreement entered into prior to such
termination or any liability under any obligation previously incurred under this
Agreement, all of which shall survive such termination.
Section 4.6. Equitable Remedies; Submission to Arbitration.
(a) Each Holder, by becoming a party to this Agreement, acknowledges and agrees
that its breach or nonperformance of any provision of this Agreement in
accordance with the specific terms hereof would result in irreparable harm to
Candlewood and to each other Holder for which money damages would not provide an
adequate remedy. Accordingly, each Holder (i) agrees that Candlewood and each
other Holder shall be entitled to specific performance or injunctive or other
equitable relief against such Holder in the event of its breach or other
non-performance of any of the provisions of this Agreement; and (ii) waives any
requirement for the securing or posting of any bond in connection with such
remedy.
(b) EXCEPT AS OTHERWISE PROVIDED IN SECTION 4.6(a), EACH
HOLDER IRREVOCABLY AGREES THAT ALL DISPUTES IN ANY WAY, MANNER OR RESPECT
ARISING OUT OF OR FROM OR RELATED TO THIS AGREEMENT OR ANY OTHER AGREEMENT
CONTEMPLATED HEREBY SHALL BE RESOLVED BY ARBITRATION IN THE CITY OF LOS ANGELES,
STATE OF CALIFORNIA, UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION.
The arbitrator to resolve any such dispute shall be selected by the Holders who
are involved in the dispute, shall have expertise and experience in the
resolution of disputes similar to the dispute to be resolved and shall not be an
Affiliate of any Holder. If such Holders are unable to agree on such selection,
each such Holder shall select one arbitrator and such arbitrators shall select
an arbitrator meeting the criteria set forth in the immediately preceding
sentence to resolve such dispute. The fees and expenses of any arbitrator
selected by any Holder shall be paid by such Holder; the fees and expenses of
any other arbitrators shall be shared equally by the Holders who are involved in
the dispute. All other expenses of such arbitration shall be paid by the Holder
incurring the same.
Section 4.7. Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the permitted successors and assigns
of Candlewood and each Holder; provided, however, that Candlewood may not assign
this Agreement except by operation of law or to a purchaser of all or
substantially all of its business and assets; and provided further, that no
Holder may assign this Agreement except in connection with a transfer of Subject
Shares by such transferring Holder to another Person which thereupon becomes a
Holder with respect to such Subject Shares, all in accordance with Section 3.1
and Section 4.8. In addition, upon the death of Jack P. DeBoer, the rights of
the DeBoer Holders hereunder shall terminate and be of no further force or
effect.
Section 4.8. Counterparts; Additional Parties. This Agreement
(a) may be executed in counterparts, all of which together shall constitute a
single agreement, and (b) shall become effective on the Effective Date. Prior to
any Disposition of Subject Shares to a Permitted Transferee, without regard to
whether or not Section 3.1 is then in effect, the Holder effecting such
Disposition shall cause such Permitted Transferee to execute and deliver to
Candlewood and all of the Holders a supplemental agreement to this Agreement, in
form and substance reasonably
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satisfactory to each of them, whereby such Permitted Transferee shall agree to
become a party to and be bound by all of the terms and conditions of this
Agreement applicable to a Holder of Subject Shares and confirm that all of the
Subject Shares to be acquired by such Permitted Transferee in such shall
continue to be subject to this. As promptly as practicable, Candlewood shall
cause a fully executed counterpart of this Agreement or any supplemental
agreement referred to in this Section 4.8 to be delivered to each Holder.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
DOUBLETREE CORPORATION, CHRISTOPHER SCOTT DEBOER
a Delaware corporation TRUST DATED MARCH 14, 1995
By: /S/ DAVID L. STIVERS By: /S/ SKYLER SCOTT DEBOER
-------------------- -----------------------
David L. Stivers Skyler Scott DeBoer,
Senior Vice President, General as Co-Trustee
Counsel and Secretary
By: /S/ LYNN A. DEBOER
-----------------------
THE WARREN D. FIX FAMILY Lynn A. DeBoer,
PARTNERSHIP, a Kansas limited as Co-Trustee
partnership
By: /S/ WARREN D. FIX
------------------------------
Warren D. Fix, General Partner
/S/ JACK P. DEBOER
- ------------------
JACK P. DEBOER
ALEXANDER JOHN DEBOER TRUST
DATED MARCH 14, 1995
By: /S/ SKYLER SCOTT DEBOER
-----------------------
Skyler Scott DeBoer,
as Co-Trustee
By: /S/ LYNN A. DEBOER
-----------------------
Lynn A. DeBoer,
as Co-Trustee
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