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Exhibit 4
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL AND
OTHER SPECIAL RIGHTS OF PREFERRED STOCK
AND QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS THEREOF
OF
SERIES A CUMULATIVE CONVERTIBLE
PREFERRED STOCK
OF
CANDLEWOOD HOTEL COMPANY, INC.,
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PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
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Candlewood Hotel Company, Inc., a Delaware corporation (the
"Corporation") certifies that pursuant to the authority contained in Article
Fourth of its Restated Certificate of Incorporation (the "Certificate of
Incorporation") and in accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware, the Board of Directors of the
Corporation at a telephonic meeting called and held on September 19, 1997
adopted the following resolution, which resolution remains in full force and
effect on the date hereof:
RESOLVED, that there is hereby established a series of authorized
preferred stock having a par value of $.01 per share, which series shall be
designated as "Series A Cumulative Convertible Preferred Stock" (the "Series A
Preferred Stock"), shall consist of 65,000 shares and shall have the following
voting powers, preferences and relative, participating, optional and other
special rights, and qualifications, limitations and restrictions thereof as
follows:
(i) Designation and Amount. The designation of the series of
the Preferred Stock shall be "Series A Cumulative Convertible Preferred Stock",
par value $.01 per share (the "Series A Preferred Stock"). The number of shares
of Series A Preferred Stock shall be 65,000. The Series A Preferred Stock shall
be assigned a stated value of $1,000 per share (the "Stated Value").
(ii) Dividends. Rate, etc. The holders of shares of Series A
Preferred
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Stock as of the related Dividend Record Date (as defined below) shall be
entitled to receive, when and if declared by the Board of Directors out of
funds legally available therefor, dividends from the date of issue thereof at
the rate of 7.5% per annum (calculated by reference to the Stated Value),
accruing on a daily basis, payable quarterly, in arrears, on the last day in
August, November, February and May of each year (each a "Dividend Payment
Date"), commencing on August 31, 1998 until such time as the Series A Preferred
Stock is redeemed or retired in full. Upon conversion of any shares of Series A
Preferred Stock, dividends shall be paid as provided in clause (vi). If any
Dividend Payment Date occurs on a day that is not a Business Day, any accrued
dividends otherwise payable on such Dividend Payment Date shall be paid on the
next succeeding Business Day with the same effect as though made on such
Dividend Payment Date. The term "Business Day" shall mean a day other than a
Saturday or Sunday, any federal holiday or any day on which banks in the City of
New York are closed. Such dividends shall be payable in cash. Such dividends
shall accrue and be cumulative with respect to each share from the date of
original issuance and shall compound on each Dividend Payment Date, beginning
November 30, 1998, with respect to any accrued dividends not paid on any such
Dividend Payment Date, whether or not earned or declared. Except as otherwise
required by law, the "Dividend Record Date" with respect to the next succeeding
Dividend Payment Date shall be the date 10 Business Days prior to such Dividend
Payment Date.
(a) Rank, etc. Unless full dividends, if applicable, on
all outstanding shares of Series A Preferred Stock which have previously become
due and payable, have been paid or are contemporaneously declared and paid (or
declared and a sum sufficient for the payment thereof is set apart for such
payment), the Corporation shall not (1) declare or pay any dividend on (A) the
common stock, $.01 par value per share (the "Common Stock"), of the Corporation
or (B) on any other class or series of stock ranking junior to the Series A
Preferred Stock as to dividends or upon liquidation (the Common Stock and any
such junior class or series being the "Junior Stock") or make any payment on
account of, or set apart money for, a sinking or other analogous fund for the
purchase, redemption or other retirement of, any Junior Stock or make any
distribution in respect thereof, either directly or indirectly and whether in
cash or property or in obligations or shares of the Corporation (other than in
shares of Junior Stock) or (2) purchase any shares of Series A Preferred Stock
(except for consideration payable in Junior Stock) or redeem fewer than all of
the shares of Series A Preferred Stock then outstanding.
(iii) Liquidation. Preference Upon Liquidation, Dissolution or
Winding Up. In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation (any or all of such events, a "liquidation"), whether
voluntary or involuntary, subject to the prior preferences and other rights of
any Senior Stock (as defined below), if any, as to liquidation preferences, the
holders of shares of Series A Preferred Stock then outstanding shall be entitled
pari passu as if members of a single class of securities with the holders of any
Parity Stock (as defined below), if any, to be paid out of the assets of the
Corporation before any payment shall be made to the
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holders of the Junior Stock, an amount equal to the Stated Value plus any
accrued but unpaid dividends (the "Liquidation Amount"). Except as provided
in this paragraph, holders of Series A Preferred Stock shall not be entitled to
any distribution in the event of liquidation, dissolution or winding up of the
affairs of the Corporation. The term "Senior Stock" shall mean any class or
series of stock of the Corporation authorized after the date of issuance of the
Series A Preferred Stock in accordance with clause (v)(b) hereof ranking senior
to the Series A Preferred Stock in respect of the right to receive dividends or
the right to participate in any distribution upon liquidation and the term
"Parity Stock" shall mean any class or series of stock of the Corporation
authorized after the date of issuance of the Series A Preferred Stock in
accordance with clause (v)(b) hereof ranking on a parity with the Series A
Preferred Stock in respect of the right to receive dividends or the right to
participate in any distribution upon liquidation.
(b) Preference on Merger, Consolidation or Sale of Assets.
Alternatively, in the event of a liquidation pursuant to clause (iii)(e) of this
Certificate of Designation, a holder of shares of Series A Preferred Stock may
elect to convert any or all of such holder's shares of Series A Preferred Stock
into shares of Common Stock in accordance with clause (vi) of this Certificate
of Designation, in which event the holders electing to convert shall be entitled
to receive, together with the other holders of shares of Common Stock, pro rata
based on the number of shares of Common Stock then outstanding and the number of
shares of Common Stock into which the Series A Preferred Stock shall have been
converted pursuant to such election, the remaining cash and/or other property
distributable to holders of Common Stock if, as and when such remaining cash
and/or other properties is distributed by the Corporation.
(c) Insufficient Assets. If, upon any liquidation of the
Corporation, the assets of the Corporation are insufficient to pay the holders
of shares of the Series A Preferred Stock and any Parity Stock, if any, then
outstanding the full amount to which they shall be entitled, such assets shall
be distributed to each holder of the Series A Preferred Stock and Parity Stock,
if any, pro rata based on the number of shares of Series A Preferred Stock and
Parity Stock, if any, held by each.
(d) Rights of Other Holders. In the event of any
liquidation, after payment shall have been made to the holders of the Series A
Preferred Stock and Parity Stock, if any, of all preferential amounts to which
they shall be entitled, the holders of shares of Junior Stock and other capital
stock of the Corporation shall receive such amounts as to which they are
entitled by the terms thereof.
(e) Consolidation, Merger or Sale of Assets. A
consolidation or merger of the Corporation with or into any other corporation
(excluding a merger in which the Corporation is the surviving entity or a merger
into a wholly-owned subsidiary), or a sale or transfer of all or substantially
all of the Corporation's assets for cash or securities shall be considered a
liquidation within the meaning of this clause (iii).
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(iv) Redemption. (i) Optional Redemption. The Series A
Preferred Stock shall be subject to redemption, at the option of the
Corporation, in whole or from time to time in part, at any time subsequent to
September 30, 1999 at a per share redemption price equal to 200% of the Stated
Value plus accrued but unpaid dividends to the date of such redemption, payable
in cash out of funds legally available therefor (an "Optional Redemption"). (ii)
Mandatory Redemption. All outstanding shares of Series A Preferred Stock shall
be redeemed by the Corporation on September 30, 2004 (the "Mandatory Redemption
Date"), at a per share redemption price equal to the Liquidation Amount, payable
in cash out of funds legally available therefor (the "Mandatory Redemption").
(a) Change of Control. Upon the occurrence of a Change of
Control Event (as hereafter defined), the Corporation shall offer to redeem all
outstanding shares of Series A Preferred Stock for a price per share equal to
the greater of (i) 175% of the Stated Value or (ii) the Liquidation Amount,
payable in cash. A "Change of Control Event" shall mean (x) the acquisition by
any Person or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (other than a group comprised entirely of the Purchasers), of
beneficial ownership, direct or indirect, of securities of the Corporation
representing fifty percent (50%) or more of the combined voting power of the
Corporation's then outstanding equity securities or (y) the acquisition of the
Corporation, or all or substantially all of its assets, by, or the combination
of the Corporation or all or substantially all of its assets, with, another
Person, unless the acquiring or surviving Person shall be a corporation, limited
liability company, partnership or other entity more than 50% of the combined
voting power of which corporation's then outstanding equity securities, after
such acquisition or combination, are owned, immediately after such acquisition
or combination, by the owners of more than 50% of the voting securities of the
Corporation immediately prior to such acquisition or combination; provided,
however, that the Corporation shall not be required to redeem any shares of
Series A Preferred Stock held by a member of a group described in clause (x)
above (but including a group comprised entirely of the Purchasers) in connection
with a Change in Control occurring prior to August 27, 1999. When used herein
the term "Person" shall mean and include an individual, a corporation, a limited
liability company, an association, a partnership, a trust or estate, a
government or any department or agency thereof.
(b) Notice of Redemption. The Corporation shall give each
holder of Series A Preferred Stock written notice of any Optional Redemption not
less than thirty (30) days nor more than forty-five (45) days prior to the
proposed redemption date, specifying such redemption date (each, an "Optional
Redemption Date"), the per share redemption price and the number of such
holder's shares to be redeemed on such date. The Corporation shall give each
holder of Series A Preferred Stock written notice (a "Notice of Change of
Control Event") within five (5) days after the Corporation or any of its
executive officers or directors obtains knowledge of the occurrence of a Change
of Control Event, specifying that a Change of Control Event has occurred, the
material facts and circumstances of such Change of Control Event,
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the redemption date, the per share redemption price and instructions that a
holder of Series A Preferred Stock must follow in order to have his shares
redeemed. The redemption date for any Change of Control Event (each a "Change of
Control Redemption Date") shall be the twenty-fifth date following such Change
of Control Event, provided that, if such redemption date is not a Business Day,
the redemption date shall be the first Business Day thereafter. Upon receipt of
a Notice of Change of Control Event, a holder of shares of Series A Preferred
Stock may, at his option, elect to have the Corporation redeem all of such
shares of Series A Preferred Stock by providing written notice to the
Corporation of such election not less than five (5) days prior to the specified
Change of Control Redemption Date. In the event some or all of such shares of
Preferred Stock are not tendered for redemption, the holder of such shares not
so tendered shall be deemed to have consented to he redemption by the
Corporation of any Junior Stock being prepaid, redeemed, retired or exchanged
pursuant to a Change of Control Event, notwithstanding any approval rights of
holders of Series A Preferred Stock pursuant to clause (v) hereof. If the
applicable redemption date is on or after a Dividend Record Date and on or
before the related Dividend Payment Date, the dividend payable shall be paid to
the holder in whose name the Series A Preferred Stock is registered at the close
of business on such record date. In the case of an Optional Redemption of less
than all shares of Series A Preferred Stock at the time outstanding, the shares
to be redeemed shall be selected pro rata, consistent with Delaware law.
(c) Failure to Redeem. (A) If, upon the Mandatory
Redemption Date, the Corporation does not redeem all outstanding shares of
Series A Preferred Stock at the per share price specified in clause (iv)(a)(ii),
the Corporation shall issue to each holder of Series A Preferred Stock on such
Redemption Date and on each three month anniversary thereof (each a "Warrant
Payment Date"), warrants to purchase twenty-five percent (25%) of the number of
shares of Common Stock (rounded to the nearest whole share) into which such
holder's outstanding shares of Series A Preferred Stock would be convertible on
such Warrant Payment Date at the then current Conversion Price. Such warrants
shall be immediately exercisable with respect to each share of Common Stock for
$.01. (B) If, upon the Change of Control Redemption Date, the Corporation does
not redeem all shares of Series A Preferred Stock tendered for redemption
pursuant to clause (iv)(c) hereof, the Conversion Price (as defined below) shall
be reduced to the lower of (1) the then applicable Conversion Price or (2) the
Market Price (as defined below) per share of Common Stock on the Redemption Date
divided by 1.75; provided, however, that under no circumstances shall the
Conversion Price be reduced to a level that is less than the par value of the
Common Stock.
(d) Effect of Redemption. On the date established for
redemption pursuant to clause (iv) hereof, all rights in respect of the shares
of Series A Preferred Stock to be redeemed, except the right to receive the
applicable redemption price, plus accrued dividends, if any, to the date of
redemption, shall cease and terminate (unless default shall be made by the
Corporation in the payment of the
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applicable redemption price, plus accrued dividends, if any, in which event such
rights shall be exercisable until such default is cured), and such shares shall
no longer be deemed to be outstanding, notwithstanding that any certificates
representing such shares shall not have been surrendered to the Corporation.
All shares of Series A Preferred Stock redeemed pursuant to this clause (iv)
shall be retired and shall be restored to the status of authorized and unissued
shares of preferred stock, without designation as to series or class and may
thereafter be reissued, subject to compliance with the terms hereof, as shares
of any series of preferred stock other than shares of Series A Preferred Stock.
(e) Insolvency of Corporation. If, upon the Mandatory
Redemption Date or any Change of Control Redemption Date, the payment of the
full amount of the redemption payments due on such date would render the
Corporation insolvent (as determined in accordance with either the then
applicable definition in the United States Bankruptcy Code or the then
applicable definition of any state fraudulent conveyance or fraudulent transfer
statute), any liquidation of the Corporation in connection with such redemption
shall require the consent of the holders of 66-2/3% of the Series A Preferred
Stock and no other consent of any holder of any other equity securities of the
Corporation, except as otherwise required by Delaware law, and in the event of
such consent the Corporation shall be liquidated and the assets of the
Corporation distributed in accordance with the provisions of clause (iii)
of this Certificate of Designation.
(f) Conversion Prior to Redemption. Anything to the
contrary in this clause (iv) of this Certificate of Designation notwithstanding,
the holders of Series A Preferred Stock shall have the right, exercisable at any
time prior to the date set for redemption thereof, to convert all or any part of
such Series A Preferred Stock into shares of Common Stock pursuant to clause
(vi) hereof.
(g) Funds for Redemption. No share of Series A Preferred
Stock may be redeemed except with funds legally available therefor.
(v) Voting Rights. Voting as a Class with the Common Stock. The
holders of the Series A Preferred Stock shall be entitled to vote together with
the holders of shares of Common Stock and any other class or series of capital
stock entitled to vote with the Common Stock as a single class on all matters to
be voted upon by the Common Stock, and shall not have any additional voting
rights other than the rights specified below in this clause (v) or otherwise
required by law. Each holder of Series A Preferred Stock shall be entitled to
such number (rounded to the nearest whole number) of votes as such holder would
be entitled if such holder had converted the shares of Series A Preferred Stock
held by such holder into shares of Common Stock pursuant to clause (vi) hereof
immediately prior to such vote.
(a) Additional Capital Stock, etc. The Corporation shall
not, without the affirmative consent or approval of the holders of shares
representing
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66 2/3% of the shares of Series A Preferred Stock then outstanding, voting as a
single class (such consent or approval to be given by written consent in lieu of
a meeting if allowable under the Corporation's Certificate of Incorporation or
by vote at a meeting called for such purpose for which notice shall have been
given to the holders of the Series A Preferred Stock): (i) authorize the
issuance of or issue any new, or increase the authorized number of shares of any
existing, class or series of capital stock of the Corporation which would be
senior or superior as to dividends or upon liquidation to the Series A Preferred
Stock, (ii) issue any shares of preferred stock authorized in the Certificate of
Incorporation or create any other class or series of stock ranking on a parity
with the Series A Preferred Stock as to dividends or upon liquidation, (iii)
authorize or issue shares of stock of any class or series or any bonds,
debentures, notes or other obligations convertible into or exchangeable for, or
having rights to purchase, any shares of stock of the Corporation which would be
senior or superior to, or rank on a parity with, the Series A Preferred Stock as
to dividends or upon liquidation, (iv) reissue any shares of Series A Preferred
Stock that have been redeemed or purchased by the Corporation, (v) take any
action, including, causing any amendment, alteration or repeal of any of the
provisions of the Corporation's Certificate of Incorporation that may alter or
change the powers, preferences or special rights of the shares of Series A
Preferred Stock so as to affect the holders thereof adversely, (vi) effect any
redemption or repurchase of any Junior Stock other than in connection with the
cashless exercise of options, or upon the exercise by the Corporation of its
repurchase rights (up to a maximum of $250,000 in the aggregate) as to Common
Stock issued to employees of the Corporation upon a termination of such
employment, (vii) increase the number of members on the Board of Directors
(except by one, in connection with the election of the President to the Board of
Directors as the eleventh member) or (viii) file a voluntary petition seeking
liquidation, reorganization, arrangement or readjustment of its debts, make an
assignment for the benefit of creditors, permit an involuntary petition seeking
liquidation, reorganization, arrangement or readjustment of its debts or seeking
appointment of a receiver to remain unchallenged or otherwise seek or permit
remedies for insolvency. Notwithstanding any other provision in this Certificate
of Designation, (1) upon the consent or approval of holders of shares
representing 66 2/3% of the shares of Series A Preferred Stock then outstanding,
voting as a single class and (2) with such other votes or consents as may be
required by Delaware law, the rules and regulations of the Securities and
Exchange Commission, the regulations of the NASDAQ or other securities exchange
applicable to the Corporation or pursuant to the Company's Certificate of
Incorporation, the Corporation may take any such action referenced in the
preceding clauses (i) - (viii).
(vi) Conversion Rights. Optional Conversion of Series A
Preferred Stock. The holder of any shares of Series A Preferred Stock shall have
the right, at such holder's option, at any time or from time to time to convert
any or all of such holder's shares of Series A Preferred Stock into such number
of fully paid and nonassessable shares of Common Stock (the "Conversion Shares")
as determined for each share of Series A Preferred Stock by dividing the Stated
Value by the "Conversion Price" in effect at the time of such conversion. The
"Conversion Price" shall be $9.50
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per share of Series A Preferred Stock, subject to the adjustments set forth
herein; provided, however, that if the Corporation fails to pay, in cash, any
and all dividends accrued, for any two Dividend Payment Dates, whether
consecutive or not (a "Dividend Default"), the Conversion Price shall be
reduced by $.50 for each such Dividend Default; and provided, further, that if
the Corporation fails to pay any and all accrued dividends on August 31, 1998,
the Conversion Price shall be reduced by $1.00; in each case subject to
adjustment as otherwise provided herein; provided, however, that a default in
the payment of any dividends accrued and unpaid as of August 31, 1998
shall not be combined with any other default to constitute a Dividend Default.
The Conversion Shares and the Conversion Price are subject to certain
adjustments as set forth herein, and the terms Conversion Shares and Conversion
Price as used herein shall as of any time be deemed to include all such
adjustments to be given effect as of such time in accordance with the terms
hereof; provided, further, that under no circumstances shall the Conversion
Price be reduced to a level that is less than the par value of the Common Stock.
Upon the exercise of the option of the holder of any shares of
Series A Preferred Stock to convert Series A Preferred Stock into Common Stock,
the holder of such shares of Series A Preferred Stock to be converted shall
surrender the certificates representing the shares of Series A Preferred Stock
so to be converted in the manner provided in clause (vi)(c) below. Immediately
following such conversion, the rights of the holders of converted Series A
Preferred Stock (other than the right to receive dividends accrued to the date
of such conversion) shall cease and the persons entitled to receive the Common
Stock upon the conversion of Series A Preferred Stock shall be treated for all
purposes (other than the right to receive dividends accrued to the date of such
conversion) as having become the owners of such Common Stock.
(a) Automatic Conversion. Subsequent to August 31, 1999,
each share of Series A Preferred Stock shall automatically be converted into
shares of Common Stock at the then applicable Conversion Price if (i) the Common
Stock has traded for a period of not less than twenty (20) consecutive days at
not less than 200% of the then applicable Conversion Price and (ii) the
Corporation at its sole expense shall have caused to become effective within 90
days of such twenty (20) consecutive day period a registration statement under
the Securities Act with respect to at least the number of shares equal to 50% of
the shares of Common Stock into which the Series A Preferred Stock then
outstanding is convertible at the then applicable Conversion Price (or such
lesser number as shall have been requested to be registered by the holders of
the Series A Preferred Stock, following notice from the Company) and shall have
caused all such shares to be sold (allocated pro rata among holders of such
Series A Preferred Stock in relation to the number of shares requested to be
registered following notice from the Company) pursuant to an underwritten public
offering in accordance with the provisions of Section 5 of the Registration
Rights Agreement (the "Registration Rights Agreement") dated September 22, 1997
among the Corporation and the parties thereto (or a registered but not
underwritten sale to one or more nationally recognized registered broker/dealers
for resale through a public distribution)
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at a per share price to each selling holder of not less than 200% of the
Conversion Price, less 1% of the then applicable Market Price.
(b) Delivery of Stock Certificates; No Fractional Shares.
The holder of any shares of Series A Preferred Stock may exercise the optional
conversion right pursuant to clause (vi)(a) above by delivering to the
Corporation or its duly authorized transfer agent during regular business hours
at the office of the Corporation the certificate or certificates for the shares
to be converted, duly endorsed or assigned either in blank or to the Corporation
(if required by it), accompanied by written notice stating that such holder
elects to convert such shares and shall provide a certificate to the Corporation
or its duly authorized transfer agent as to the date of such conversion. Upon
the occurrence of an automatic conversion pursuant to clause (vi)(b) above, the
Corporation shall deliver notice to each holder of Series A Preferred Stock and
the holder of any shares of Series A Preferred Stock shall deliver to the
Corporation at the office of the Corporation the certificate or certificates for
all shares of Series A Preferred Stock then held by such holder, duly endorsed
or assigned either in blank or to the Corporation (if requested by it).
Conversion shall be deemed to have been effected (1) in the case of an optional
conversion, on the date when the aforesaid delivery of stock certificates is
made if such day is a Business Day and otherwise on the Business Day following
the date of the aforesaid delivery, and (2) in the case of an automatic
conversion pursuant to clause (vi)(b), upon the effective date of the
registration statement (provided that if the shares registered thereunder are
not sold no Conversion Date shall be deemed to have occurred) and in each case
such date is referred to herein as the "Conversion Date." As promptly as
practicable thereafter, the Corporation, through its transfer agent, shall issue
and deliver to or upon the written order of such holder, to the place designated
by such holder, a certificate or certificates for the number of full shares of
Common Stock to which such holder is entitled and a check or cash in respect of
any fractional interest in a share of Common Stock, as provided below; provided,
however, that in the case of a conversion in connection with liquidation, no
such certificates need be issued. The person in whose name the certificate or
certificates for Common Stock are to be issued shall be deemed to have become
the stockholder of record in respect of such Common Stock on the applicable
Conversion Date unless the transfer books of the Corporation are closed on that
date, in which event such holder shall be deemed to have become the stockholder
of record in respect of such Common Stock on the next succeeding date on which
the transfer books are open, but the Conversion Price shall be that in effect
on the Conversion Date. Upon conversion of only a portion of the number of
shares covered by a stock certificate representing shares of Series A Preferred
Stock surrendered for conversion, the Corporation shall issue and deliver to or
upon the written order of the holder of the stock certificate so surrendered for
conversion, at the expense of the Corporation, a new stock certificate covering
the number of shares of Series A Preferred Stock representing the unconverted
portion of the certificate so surrendered. Any transfer taxes applicable to the
above described transactions shall be paid by such transferee. The Corporation
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of Common Stock or the
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reissuance of the Preferred Stock in a name other than that in which the shares
of Series A Preferred Stock so converted were registered, and no such issuance
or delivery shall be made unless and until the person requesting such issuance
has paid to the Corporation the amount of any such tax or has established to the
satisfaction of the Corporation that such tax has been paid.
(c) No Fractional Shares of Common Stock. (1) No
fractional shares of Common Stock shall be issued upon conversion of shares of
Series A Preferred Stock and in lieu thereof, the Corporation shall pay a cash
adjustment in respect of such fractional interest in an amount equal to the then
current Market Price (as defined in clause (vi)(e)(8) below) of a share of
Common Stock multiplied by such fractional interest. The holders of fractional
interests shall not be entitled to any rights as stockholders of the Corporation
in respect of such fractional interests. In determining the number of shares of
Common Stock and the payment, if any, in lieu of fractional shares that a holder
of Series A Preferred Stock shall receive, the total number of shares of Series
A Preferred Stock surrendered for conversion by such holder shall be aggregated.
(2) On the first Dividend Payment Date on which accrued dividends
are paid in full to all holders of Series A Preferred Stock following the
optional conversion pursuant to clause (vi) (a) of all or any portion of the
Series A Preferred Stock, the Corporation shall pay (i) any dividends accrued on
such converted Series A Preferred Stock to the date of such conversion plus (ii)
any dividends accrued on any accrued and unpaid dividends (on which dividends
shall accrue at a rate of 7.5% per annum, compounded quarterly) other than
dividends accruing as of the last Dividend Payment Date. Accrued dividends with
respect to all shares converted pursuant to clause (vi) (b) hereof shall be paid
in full on the Conversion Date out of funds legally available therefor.
(d) Adjustment of Conversion Price Upon Issuance of Common
Stock. If and whenever after the date hereof the Corporation shall issue or sell
any shares of its Common Stock (except upon conversion of the Series A Preferred
Stock) for a consideration per share less than, under certain circumstances
including those in paragraphs (1) through (9) below, the Conversion Price in
effect immediately prior to the time of such issue or sale, then, forthwith upon
such issue or sale, the Conversion Price shall be reduced (but not increased,
except as otherwise specifically provided in paragraph (3) below) to the price
(calculated to the nearest cent) determined by dividing (i) an amount equal to
the sum of (A) the aggregate number of shares of Common Stock outstanding
immediately prior to such issue or sale multiplied by the then existing
Conversion Price and (B) the consideration, if any, received by the Corporation
upon such issue or sale, by (ii) the aggregate number of shares of Common Stock
of all classes outstanding immediately after such issue or sale.
No adjustment of the Conversion Price, however, shall be made in
an amount less than $.05 per share, but any such lesser adjustment shall be
carried
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forward and shall be made upon the time of and together with the next
subsequent adjustment, if any.
For the purposes of this clause (vi)(e), the following paragraphs
(1) through (9) shall also be applicable:
(1) Issuance of Rights or Options - In case at any time after the
date hereof the Corporation shall in any manner grant (whether directly
or by assumption in a merger or otherwise, except in the circumstances
described in clause (vi)(f) below) any rights to subscribe for or to
purchase, or any options or warrants for the purchase of, Common Stock
or any stock, notes or securities convertible into or exchangeable for
Common Stock (such convertible or exchangeable stock, notes or
securities being herein called "Convertible Securities"), whether or not
such rights, options or warrants or the right to convert or exchange any
such Convertible Securities are immediately exercisable, and the price
per share for which Common Stock is issuable upon the exercise of such
rights, options or warrants or upon conversion or exchange of such
Convertible Securities (determined by dividing (i) the total amount, if
any, received or receivable by the Corporation as consideration for the
granting of such rights, options or warrants, plus the minimum aggregate
amount of additional consideration, if any, payable to the Corporation
upon the exercise of such rights, options or warrants, plus, in the case
of such rights, options or warrants which relate to Convertible
Securities, the minimum aggregate amount of additional consideration, if
any, payable upon the issue or sale of such Convertible Securities and
upon the conversion or exchange thereof, by (ii) the total maximum
number of shares of Common Stock issuable upon the exercise of such
rights, options or warrants or upon the conversion or exchange of all
such Convertible Securities issuable upon the exercise of such rights,
options or warrants) shall be less than the Conversion Price in effect
immediately prior to the time of the granting of such rights, options or
warrants, then the total maximum number of shares of Common Stock
issuable upon the exercise of such rights, options or warrants or upon
conversion or exchange of all such Convertible Securities issuable upon
the exercise of such rights, options or warrants shall (as of the date
of granting of such rights or options) be deemed to be outstanding and
to have been issued for such price per share. Except as provided in
paragraph (3), no further adjustment of the Conversion Price shall be
made upon the actual issue of such Common Stock or of such Convertible
Securities upon exercise of such rights, options or warrants or upon the
actual issue of such Common Stock upon conversion or exchange of such
Convertible Securities.
(2) Issuance of Convertible Securities - In case at any time
after the date hereof the Corporation shall in any manner issue (whether
directly or by assumption in a merger or otherwise) or sell any
Convertible Securities, whether or not the rights to exchange or convert
thereunder are immediately
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exercisable, and the price per share for which Common Stock is issuable
upon such conversion or exchange (determined by dividing (i) the total
amount received or receivable by the Corporation as consideration for
the issue or sale of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable to the
Corporation upon the conversion or exchange thereof, by (ii) the total
maximum number of shares of Common Stock issuable upon the conversion
or exchange of all such Convertible Securities) shall be less than the
Conversion Price in effect immediately prior to the time of such issue
or sale, then the total maximum number of shares of Common Stock
issuable upon conversion or exchange of all such Convertible Securities
shall (as of the date of the issue or sale of such Convertible
Securities) be deemed to be outstanding and to have been issued for such
price per share; provided, however, that (a) except as otherwise
provided in paragraph (3), no further adjustment of the Conversion Price
shall be made upon the actual issue of such Common Stock upon conversion
or exchange of such Convertible Securities, and (b) if any such issue or
sale of such Convertible Securities is made upon exercise of any rights
to subscribe for or to purchase or any option to purchase any such
Convertible Securities for which adjustments of the Conversion Price
have been or are to be made pursuant to other provisions of this clause
(vi)(e), no further adjustment of the Conversion Price shall be made by
reason of such issue or sale.
(3)Change in Option Price or Conversion Rate - If the purchase
price provided for in any right or option referred to in paragraph (1),
the additional consideration, if any, payable upon the conversion or
exchange of any Convertible Securities referred to in paragraph (1) or
(2), or the rate at which any Convertible Securities referred to in
paragraph (1) or (2) are convertible into or exchangeable for Common
Stock shall change (other than under or by reason of provisions designed
to protect against dilution), the Conversion Price then in effect
hereunder shall forthwith be readjusted (increased or decreased, as the
case may be) to the Conversion Price which would have been in effect at
such time had such rights, options or Convertible Securities still
outstanding provided for such changed purchase price, additional
consideration or conversion rate, as the case may be, at the time
initially granted, issued or sold. On the expiration of any such option
or right referred to in paragraph (1) or the termination of any such
right to convert or exchange any such Convertible Securities referred to
in paragraph (1) or (2), the Conversion Price then in effect hereunder
shall forthwith be readjusted (increased or decreased, as the case may
be) to the Conversion Price which would have been in effect at the time
of such expiration or termination had such right, option or Convertible
Securities, to the extent outstanding immediately prior to such
expiration or termination, never been granted, issued or sold, and the
Common Stock issuable thereunder shall no longer be deemed to be
outstanding. If the purchase price provided for in any such right or
option referred to in paragraph (1) or the rate at which any Convertible
Securities referred to in paragraph (1) or (2) are convertible into or
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exchangeable for Common Stock shall be reduced at any time under or by
reason of provisions with respect thereto designed to protect against
dilution, then in case of the delivery of shares of Common Stock upon
the exercise of any such right or option or upon conversion or exchange
of any such Convertible Securities, the Conversion Price then in effect
hereunder shall, if not already adjusted, forthwith be adjusted to such
amount as would have obtained had such right, option or Convertible
Securities never been issued as to such shares of Common Stock and had
adjustments been made upon the issuance of the shares of Common Stock
delivered as aforesaid, but only if as a result of such adjustment the
Conversion Price then in effect hereunder is thereby reduced.
(4) Stock Dividends - In case at any time (other than with respect
to the Series A Preferred Stock and, to the extent the holders of shares
of Series A Preferred Stock participate on an as-converted basis, the
Common Stock) the Corporation shall declare a dividend or make any other
distribution upon any class or series of stock of the Corporation
payable in shares of Common Stock or Convertible Securities, any shares
of Common Stock or Convertible Securities, as the case may be, issuable
in payment of such dividend or distribution shall be deemed to have been
issued or sold without consideration.
(5) Consideration for Stock - Anything herein to the contrary
notwithstanding, in case at any time any shares of Common Stock or
Convertible Securities or any rights, options or warrants to purchase
any such Common Stock or Convertible Securities shall be issued or sold
for cash, the consideration received therefor shall be deemed to be the
amount received by the Corporation therefor, without deduction therefrom
of any expenses incurred or any underwriting commissions or concessions
paid or allowed by the Corporation in connection therewith.
In case at any time any shares of Common Stock or any class or
Convertible Securities or any rights or options to purchase any such shares of
Common Stock or Convertible Securities shall be issued or sold for a
consideration other than cash, in whole or in part, the amount of the
consideration other than cash received by the Corporation shall be deemed to be
the fair value of such consideration as determined reasonably and in good faith
by the Board of Directors of the Corporation, without deduction of any expenses
incurred or any underwriting commissions or concessions paid or allowed by the
Corporation in connection therewith. In case at any time any shares of Common
Stock or any class or Convertible Securities or any rights or options to
purchase such shares of Common Stock or Convertible Securities shall be issued
in connection with any merger or consolidation in which the Corporation is the
surviving corporation, the amount of consideration received therefor shall be
deemed to be the fair value as determined reasonably and in good faith by the
Board of Directors of the Corporation of such portion of the assets and business
of the nonsurviving corporation as such Board may determine to be attributable
to such shares of Common
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Stock, Convertible Securities, rights or options, as the case may be. In case at
any time any rights or options to purchase any shares of Common Stock or
Convertible Securities shall be issued in connection with the issue and sale of
other securities of the Corporation, together comprising one integral
transaction in which no consideration is allocated to such rights or options by
the parties thereto, such rights or options shall be deemed to have been issued
for an amount of consideration equal to the fair value thereof as determined
reasonably and in good faith by the Board of Directors of the Corporation.
(6) Record Date - In case the Corporation shall take a record of
the holders of its Common Stock for the purpose of entitling them (A) to
receive a dividend or other distribution payable in shares of Common
Stock or in Convertible Securities, or (B) to subscribe for or purchase
shares of Common Stock or Convertible Securities, then such record date
shall be deemed to be the date of the issue or sale of the shares of
Common Stock deemed to have been issued or sold as a result of the
declaration of such dividend or the making of such other distribution or
the date of the granting of such right of subscription or purchase, as
the case may be.
(7) Treasury Shares - The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by
or for the account of the Corporation, and the disposition of any such
shares shall be considered an issue or sale of Common Stock for the
purposes of this clause (vi)(e).
(8) Definition of Market Price - Unless otherwise set forth in
this Certificate of Designation, "Market Price" shall mean the last
reported sale price of the applicable security as reported by the
National Association of Securities Dealers, Inc. Automatic Quotations
System, National Market System, or, if the applicable security is listed
or admitted for trading on a securities exchange, the last reported
sales price of the applicable security on the principal exchange on
which the applicable security is listed or admitted for trading (which
shall be for consolidated trading if applicable to such exchange), or if
neither so reported or listed or admitted for trading, the last reported
bid price of the applicable security in the over-the-counter market. In
the event that the Market Price cannot be determined as aforesaid, the
Board of Directors of the Corporation shall determine the Market Price
on the basis of such quotations as it in good faith considers
appropriate, in consultation with a nationally recognized investment
bank. The Market Price shall be such price averaged over a period of 20
consecutive business days ending 2 days prior to the day as of which
"Market Price" is being determined.
(9) Adjustment to Determination of Market Price - When making the
calculations and determinations described in clause (vi)(e) hereof,
there shall not be taken into account (i) the issuance of Common Stock
upon the exercise of
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options outstanding on the date this Certificate of Designation was
filed with the State of Delaware for the purchase of up to 554,350
shares of Common Stock, and (ii) the issuance of any rights to subscribe
for or to purchase, or any options for the purchase of, up to 3.5% of
the fully diluted shares of Common Stock of the Corporation as of the
date of issuance of all shares of Series A Preferred Stock (subject to
adjustment as set forth herein) or any stock or securities convertible
into or exchangeable for Common Stock to officers, employees or
directors ("Company Securities"); provided, that all Common Stock
issuable with respect to any such Company Securities be issuable at or
above the Market Price as of the date of the grant.
(e) Liquidating Dividends; Purchase Rights. (1) In case at
any time after the date hereof the Corporation shall declare a dividend upon the
shares of Common Stock of any class payable otherwise than in shares of Common
Stock or Convertible Securities, otherwise than out of funds legally available
therefor (determined in accordance with generally accepted accounting
principles, including the making of appropriate deductions for minority
interests, if any, in subsidiaries), and otherwise than in the securities to
which the provisions of clause (2) below apply, the Corporation shall pay over
to each holder of Series A Preferred Stock, upon conversion thereof on or after
the dividend payment date, the securities and other property (including cash)
which such holder would have received (together with all distributions thereon)
if such holder had converted the Series A Preferred Stock held by it on the
record date fixed in connection with such dividend, and the Corporation shall
take whatever steps are necessary or appropriate to keep in reserve at all times
such securities and other property as shall be required to fulfill its
obligations hereunder in respect of the shares issuable upon the exercise or
conversion of all the Series A Preferred Stock. For the purposes of the
foregoing, a dividend other than in cash shall be considered payable out of
funds legally available therefor, only to the extent that such earnings or
retained earnings are charged an amount equal to the fair value of such dividend
as determined by the Board of Directors of the Corporation.
(2) If at any time or from time to time on or after the date
hereof, the Corporation shall grant, issue or sell any options or rights (other
than Convertible Securities) to purchase stock, warrants, securities or other
property pro rata to the holders of Common Stock of all classes ("Purchase
Rights"), and if the holder shall be entitled to an adjustment pursuant to
clause (vi)(e) above, then in lieu of such adjustment, each holder of Series A
Preferred Stock shall be entitled, at such holder's option, to acquire (whether
or not such holder's Series A Preferred Stock shall have been converted), upon
the terms applicable to such Purchase Rights, the aggregate Purchase Rights
which such holder could have acquired if such holder had held the number of
shares of Common Stock issuable upon conversion of such Series A Preferred Stock
immediately prior to the time or times at which the Corporation granted, issued
or sold such Purchase Rights.
(f) Subdivision or Combination of Stock. In case the
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Corporation shall at any time subdivide its outstanding shares of Common Stock
into a greater number of shares, the Conversion Price in effect immediately
prior to such subdivision shall be proportionately reduced and, conversely, in
case the outstanding shares of Common Stock of the Corporation shall be combined
into a smaller number of shares, the Conversion Price in effect immediately
prior to such combination shall be proportionately increased.
(g) Changes in Common Stock. If any capital reorganization
or reclassification of the capital stock of the Corporation, or consolidation or
merger of the Corporation with another corporation, or the sale, transfer or
other disposition of all or substantially all of its assets to another
corporation for cash or stock of such other corporation, shall be effected,
then, as a condition of such reorganization, reclassification, consolidation,
merger, sale, transfer or other disposition, lawful and adequate provision shall
be made whereby each holder of Series A Preferred Stock shall thereafter have
the right to purchase and receive upon the basis and upon the terms and
conditions herein specified and in lieu of the shares of the Common Stock of the
Corporation immediately theretofore issuable upon conversion of the Series A
Preferred Stock, such shares of stock, securities or properties as may be
issuable or payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such Common Stock
immediately theretofore issuable upon conversion of the Series A Preferred Stock
had such reorganization, reclassification, consolidation, merger, sale, transfer
or other disposition not taken place, and in any such case appropriate
provisions shall be made with respect to the rights and interests of each holder
of Series A Preferred Stock to the end that the provisions hereof (including
without limitation provisions for adjustment of the Conversion Price) shall
thereafter be applicable, as nearly equivalent as may be practicable in relation
to any shares of stock, securities or properties thereafter deliverable upon the
exercise thereof. The Corporation shall not effect any such consolidation,
merger, sale, transfer or other disposition, unless prior to or simultaneously
with the consummation thereof the successor corporation (if other than the
Corporation) resulting from such consolidation or merger or the corporation
purchasing or otherwise acquiring such properties shall assume, by written
instrument executed and mailed or delivered to the holders of Series A Preferred
Stock at the last address of such holders appearing on the books of the
Corporation, the obligation to deliver to such holders such shares of stock,
securities or properties as, in accordance with the foregoing provisions, such
holders may be entitled to acquire. The above provisions of this subparagraph
shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, sales, transfers, or other dispositions.
(h) Certain Events. If any event occurs as to which in the
opinion of the Board of Directors of the Corporation the other provisions of
this clause (vi) are not strictly applicable or if strictly applicable would not
fairly protect the conversion rights of the holders of the Series A Preferred
Stock in accordance with the essential intent and principles of such provisions,
then such Board of Directors, acting by a vote of at least 75% of the members
thereof, shall provide for the benefit of
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holders of shares of Series A Preferred Stock an adjustment, if any, on a basis
consistent with such essential intent and principles, necessary to preserve,
without dilution, the rights of the holders of the Series A Preferred Stock.
Upon such vote by the Board of Directors, the Corporation shall forthwith make
the adjustments described therein; provided, however, that no such adjustment
shall have the effect of increasing the Conversion Price as otherwise determined
pursuant to this clause (vi) except in the event of a combination of shares of
the type contemplated in clause (vi)(g) and then in no event to an amount larger
than the conversion price as adjusted pursuant to clause (vi)(g).
(i) Prohibition of Certain Actions. The Corporation shall
not, without the affirmative consent or approval of the holders of shares
representing 66 2/3% of the shares of Series A Preferred Stock then outstanding,
voting as a single class (such consent or approval to be given by written
consent in lieu of a meeting (if allowable under the Corporation's Certificate
of Incorporation) or by vote at a meeting called for such purpose for which
notice shall have been given to the holders of the Series A Preferred Stock)
(1) authorize or issue, or agree to authorize or issue, any shares of its
capital stock of any class or series of preferred as to dividends or
liquidation, unless the rights of the holders thereof shall be limited to a
fixed sum or percentage of par value in respect of participation in dividends
and in the distribution of such assets or (2) authorize, issue or permit to
remain outstanding any class or series of its capital stock (including, without
limitation, the Common Stock but not including he Series A Preferred Stock)
having the right to vote for the election of directors or in respect of any
other matter, which class or series is entitled to more than one vote per share.
The Corporation will not take any action which would result in any adjustment
of the Conversion Price if the total number of shares of Common Stock issuable
after such action upon conversion of all of the Series A Preferred Stock would
exceed the total number of shares of Common Stock then authorized by the
Corporation's Certificate of Incorporation.
(j) Stock to be Reserved. The Corporation will at all
times reserve and keep available out of its authorized Common Stock, solely for
the purpose of issue upon the conversion of Series A Preferred Stock as herein
provided, such number of shares of Common Stock as shall then be issuable upon
the conversion of all outstanding Series A Preferred Stock. The Corporation
covenants that all shares of Common Stock which shall be so issuable shall, upon
issuance, be duly authorized, validly issued, fully paid and nonassessable,
free from preemptive or similar rights on the part of the holders of any shares
of capital stock or securities of the Corporation, and free from all liens and
charges with respect to the issue thereof; and without limiting the generality
of the foregoing, the Corporation covenants that it will from time to time take
all such action as may be requisite to assure that the par value, if any, per
share of the Common Stock is at all times equal to or less than the then
effective Conversion Price. The Corporation will take all such action as may be
necessary to assure that such shares of Common Stock may be so issued without
violation by the Corporation of any applicable law or regulation or agreement,
or of any requirements
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of any domestic securities exchange upon which the Common Stock may be listed.
Without limiting the foregoing, the Corporation will take all such action as may
be necessary to assure that, upon conversion of any of the Series A Preferred
Stock, an amount equal to the lesser of (1) the par value of each share of
Common Stock outstanding immediately prior to such conversion, or (2) the
Conversion Price shall be credited to the Corporation's stated capital account
for each share of Common Stock issued upon such conversion, and that, if clause
(1) above is applicable, the balance of the Conversion Price of Series A
Preferred Stock converted shall be credited to the Corporation's capital surplus
account.
(k) Registration and Listing of Common Stock. If any
shares of Common Stock required to be reserved for purposes of conversion of
Series A Preferred Stock hereunder require registration with or approval of any
governmental authority under any Federal or state law (other than the Securities
Act) before such shares may be issued upon conversion, the Corporation will, at
its expense and as expeditiously as possible, use its best efforts to cause such
shares to be duly registered or approved, as the case may be. Shares of Common
Stock issuable upon conversion of the Series A Preferred Stock shall be
registered by the Corporation under the Securities Act or similar statute then
in force if required before such shares may be issued upon conversion. If and
so long as the Common Stock is listed on any national securities exchange, the
Corporation will, at its expense, obtain promptly and maintain the approval for
listing on each such exchange upon official notice of issuance, of shares of
Common Stock issuable upon conversion of the then outstanding Series A Preferred
Stock and maintain the listing of such shares after their issuance; and the
Corporation will also list on such national securities exchange, will register
under the Exchange Act and will maintain such listing of, any other securities
that at any time are issuable upon conversion of the Series A Preferred Stock,
if and at the time that any securities of the same class shall be listed on
such national securities exchange by the Corporation.
(l) Closing of Books. The Corporation will at no time
close its transfer books against the transfer of any Series A Preferred Stock or
of any shares of Common Stock issued or issuable upon the conversion of any
Series A Preferred Stock in any manner which interferes with the timely
conversion ofsuch Series A Preferred Stock.
(m) Statement of Adjustment of Conversion Price. Whenever
the Conversion Price shall be adjusted as provided in clause (vi)(e) above, the
Corporation shall forthwith file at its office a statement, signed by its
independent certified public accountants, showing in detail the facts requiring
such adjustment and the Conversion Price that shall be in effect after such
adjustment. The Corporation shall also cause a copy of such statement to be sent
by certified mail, return receipt requested, to each holder of shares of Series
A Preferred Stock to such holder's address appearing on the Corporation's
records. Where appropriate, such copy may be given in advance and may be
included as part of a notice required to be mailed under the
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provisions of clause (vi)(o) below.
(n) Notice. In the event the Corporation shall propose to
take any action of the types described in clause (vi)(e) above, the Corporation
shall give notice to each holder of shares of Series A Preferred Stock which
notice shall specify the record date, if any, with respect to any such action
and the date on which such action is to take place. Such notice shall also set
forth such facts with respect thereto as shall be reasonably necessary to
indicate the effect of such action (to the extent such effect may be known at
the date of such notice) on the Conversion Price and the number, kind or class
of shares or other securities or property which shall be deliverable or
purchasable upon the occurrence of such action or deliverable upon conversion
of shares of Series A Preferred Stock. In the case of any action which would
require the fixing of a record date, such notice shall be given at least 20
days prior to the date so fixed, and in case of all other action, such notice
shall be given at least 30 days prior to the taking of such proposed action.
(o) Taxes. The Corporation shall pay all documentary,
stamp or other transactional taxes attributable to the issuance or delivery of
shares of capital stock of the Corporation upon conversion of any shares of
Series A Preferred Stock. The Corporation shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issuance
and delivery of Common Stock or the reissuance of the Preferred Stock in a name
other than that in which the shares of Series A Preferred Stock so converted
were registered, and no such issuance or delivery shall be made unless and until
the person requesting such issuance has paid to the Corporation the amount of
any such tax or has established to the satisfaction of the Corporation that such
tax has been paid.
(p) Exclusion of Other Rights. Except as may otherwise be
required by law, the shares of Series A Preferred Stock shall not have any
voting powers, preferences and relative, participating, optional or other
special rights, other than those specifically set forth in this resolution and
in the Certificate of Incorporation. The shares of Series A Preferred Stock
shall have no preemptive or subscription rights.
(q) Failure to Sell and Purchase Series A Preferred Stock.
The shares of Series A Preferred Stock will be sold to certain purchasers in two
separate sales of shares pursuant to a Stock Purchase Agreement among the
Corporation and such purchasers (the "Stock Purchase Agreement"). If the sale of
such shares on the Second Closing Date (as defined in the Stock Purchase
Agreement) does not occur within six months of the Initial Closing Date (as
defined in the Stock Purchase Agreement) on such six month anniversary date,
all shares of Series A Preferred Stock then outstanding shall, at the option of
each holder, be converted into Common Stock at the then applicable Conversion
Price or purchased by the Corporation for the Liquidation Amount.
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IN WITNESS WHEREOF, Candlewood Hotel Company, Inc. has caused
these presents to be signed in its name and on its behalf by its Chief
Executive Officer on September 21, 1997.
CANDLEWOOD HOTEL COMPANY, INC.
By /s/ Jack P. DeBoer
------------------------------
Name: Jack P. DeBoer
Title: Chief Executive Officer