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EXHIBIT 10.3
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
This Amended and Restated Stockholders Agreement, dated as of
July 10, 1998 (this "Agreement"), by and among Candlewood Hotel Company, Inc., a
Delaware corporation (the "Company"), Doubletree Corporation, a Delaware
corporation (together with its subsidiaries, "Doubletree"), the Warren D. Fix
Family Partnership, L.P., a Kansas limited partnership (the "Fix Partnership"),
and Jack P. DeBoer ("DeBoer"), on behalf of himself and as representative of the
Alexander John DeBoer Trust dated March 14, 1995 and the Christopher Scott
DeBoer Trust dated March 14, 1995 (collectively, the "Trusts") (collectively,
the "Initial Holders"), and each of the other entities set forth on the
signature pages hereto (collectively, the parties to this Agreement other than
the Company are referred to as the "Holders").
WITNESSETH:
WHEREAS, the Initial Holders had previously entered into that
certain Stockholders Agreement, dated as of September 30, 1996 (the "Original
Stockholders Agreement"), relating to the governance of the Company, including
procedures for the election of directors, the approval of certain significant
corporate actions and rights relating to the purchase of capital stock of the
Company;
WHEREAS, in connection with the issuance and sale of shares of
Series A Cumulative Convertible Preferred Stock, par value $.01 per share (the
"Series A Preferred Stock"), of the Company (the "Purchased Shares") pursuant to
the Stock Purchase Agreement, dated as of August 27, 1997 (the "Stock Purchase
Agreement"), among the Company and the other parties signatory thereto, the
Original Stockholders Agreement was terminated and the Company entered into the
Stockholders Agreement, dated as of September 22, 1997 (the "Second Stockholders
Agreement"), among the Company, the Initial Holders and the parties listed on
Schedule A thereto;
WHEREAS, the Company has agreed to issue and sell, and the
Purchasers (as defined in the Securities Purchase Agreement referred to below)
have severally agreed to purchase (i) shares of Series B Cumulative Convertible
Preferred Stock, par value $.01 per share (the "Series B Preferred Stock"), of
the Company and (ii) warrants exercisable to purchase initially 336,000 shares
of Common Stock at an initial exercise price of $12.00 per share (the
"Warrants," and, together with the Series B Preferred Stock, the "Series B
Securities") pursuant to the Securities Purchase Agreement, dated as of June 30,
1998 (the "Securities Purchase Agreement"), among the Company and the
Purchasers;
WHEREAS, it is a condition precedent to the obligation of the
Purchasers to purchase the Series B Securities pursuant to the Securities
Purchase Agreement that the parties hereto enter into this Agreement;
WHEREAS, the Second Stockholders Agreement is being terminated
simultaneously with the execution of this Agreement and the parties hereto
hereby enter into this Agreement on the terms and subject to the conditions set
forth below;
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NOW, THEREFORE, in consideration of the agreement of the
Purchasers to purchase the Series B Securities and for other good and valuable
consideration the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1. Defined Terms. All terms capitalized but not defined herein
shall have the meaning attributable to such terms in the Securities Purchase
Agreement, except where the context otherwise requires. The following additional
terms when used in this Agreement, including its preamble and recitals, shall,
except where the context otherwise requires, have the following meanings, such
meanings to be equally applicable to the singular and plural forms thereof:
"Affiliate" of a Holder means any Person, other than the Company,
controlling, controlled by or under common control with such Holder.
"Board" means the Board of Directors of the Company.
"Common Stock" means and includes the Company's currently
authorized common stock, par value $.01 per share.
"DeBoer/Fix Holders" means DeBoer, the Trusts and the Fix
Partnership (so long as each is a Holder) and each Permitted Transferee, other
than the Company, who becomes a Holder.
"DeBoer/Fix Shares" means the shares of Common Stock owned of
record or beneficially by DeBoer, the Trusts and the Fix Partnership on the
Effective Date.
"DeBoer Holders" means DeBoer and the Trusts (so long as each is
a Holder) and each Permitted Transferee of DeBoer, other than the Company, who
becomes a Holder.
"DeBoer Shares" means the shares of Common Stock owned of record
or beneficially by DeBoer and the Trusts on the Effective Date.
"Director" means a director of the Company.
"Doubletree Holders" means Doubletree (so long as it is a Holder)
and each Permitted Transferee of Doubletree, other than the Company, who becomes
a Holder.
"Doubletree Shares" means the Shares of Common Stock owned of
record or beneficially by Doubletree 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.
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"Fix Partnership Holders" means the Fix Partnership (so long as
it is a Holder) and each Permitted Transferee of the Fix Partnership, other than
the Company, who becomes a Holder.
"Fix Partnership Shares" means the shares of Common Stock owned
of record or beneficially by the Fix Partnership on the Effective Date.
"Holder" shall have the meaning set forth in the preamble hereto.
"Initial Holder" means a record or beneficial owner of any
Subject Shares.
"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, (iii) a Person owning, directly or indirectly, a majority of
the voting interests 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, (iv) 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 or
(v) as to any Series A Preferred Stock or Series A Share Equivalent, any
transferee permitted by the terms of the Stock Purchase Agreement and as to any
Series B Preferred Stock or Series B Share Equivalent, any transferee permitted
by the terms of the Securities Purchase Agreement, in each case other than (x) a
competitor in the extended stay hotel business or (y) an entity owning more than
20% of the equity securities of such competitor or represented on the board of
directors of such competitor, including in each case in connection with this
clause (y), Affiliates of such competitor; 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), (iii), (iv) or (v) of this definition, the
Permitted Transferee has become a party to and agreed to be bound by this
Agreement as to all Subject Shares, shares of Series A Preferred Stock, shares
of Series A Share Equivalents, shares of Series B Preferred Stock or shares of
Series B Share Equivalents then being transferred to it. "Permitted Transferee"
includes successive transferee in transactions described in the preceding
sentence.
"Person" means and includes an individual, a corporation, a
limited liability company, an association, a partnership, a trust or estate, a
government or any department or agency thereof.
"Public Sale" means a sale of Subject Shares, Series A Share
Equivalents or Series B Share Equivalents pursuant to an effective registration
statement in accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") or a sale pursuant to Rule 144 thereof.
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"Securities Purchase Agreement" shall have the meaning set forth
in the third WHEREAS clause.
"Series A Preferred Holder" means each of the parties listed on
Schedule A-1 hereto (so long as it is a Holder) and each Permitted Transferee of
such Series A Preferred Holder, other than the Company, who becomes a Holder.
"Series A Preferred Stock" shall have the meaning set forth in
the second WHEREAS clause.
"Series A Purchaser Group" means (i) Olympus Growth Fund II, L.P.
with respect to one nominee for director of the Company, (ii) Desai Capital with
respect to one nominee for director of the Company and (iii) Pecks Management
with respect to one nominee for director of the Company (each a "Significant
Purchaser"), so long as such Significant Purchaser shall hold at least 20% of
the shares of Series A Preferred Stock or Series A Share Equivalents purchased
by such Significant Purchaser pursuant to the Stock Purchase Agreement, and, if
at any time such Significant Purchaser shall waive its rights hereunder or shall
hold less than 20% of the shares of Series A Preferred Stock or Series A Share
Equivalents purchased by such Significant Purchaser pursuant to the Stock
Purchase Agreement, the designee formerly designated by such Significant
Purchaser shall henceforth be designated by all of the Series A Preferred
Holders holding shares of Series A Preferred Stock or Series A Share
Equivalents.
"Series A Share Equivalents" of the Series A Preferred Stock
means the number of shares of Common Stock that are issued or issuable upon
conversion of the Series A Preferred Stock but excluding any shares sold in a
Public Sale.
"Series B Purchaser Group" means the holders of at least a
majority of shares of Series B Preferred Stock or Series B Share Equivalents.
"Series B Preferred Holder" means each of the parties listed on
Schedule A-2 hereto (so long as a Holder) and each Permitted Transferee of such
Series B Preferred Holder, other than the Company, who becomes a Holder.
"Series B Share Equivalents" of the Series B Preferred Stock or
Warrants means the number of shares of Common Stock that are issuable upon the
conversion of the Series B Preferred Stock or exercise of the Warrants but
excluding any shares sold in a Public Sale.
"Stock Purchase Agreement" shall have the meaning set forth in
the second WHEREAS clause.
"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
to any Person other than a Permitted Transferee of the Holder thereof, the
shares so
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canceled 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.
ARTICLE II.
VOTING AGREEMENT
2.1. Board Nominations. The Board of the Company shall be
composed of at least twelve (12) members plus, pursuant to clause (v) below, the
President of the Company; provided, that the Company and the Holders have agreed
(i) that the Series A Purchaser Group shall be entitled, through a nominating
committee or other procedure adopted by the Board, to designate for nomination
by the Board three (3) nominees for election to the Board, (ii) that the Series
B Purchaser Group shall be entitled, through a nominating committee or other
procedure adopted by the Board, to designate for nomination by the Board one (1)
nominee for election to the Board, (iii) that the Doubletree Holders shall be
entitled, through a nominating committee or other procedure adopted by the
Board, to designate for nomination by the Board two (2) nominees for election to
the Board, (iv) that the DeBoer/Fix Holders shall be entitled, through a
nominating committee or other procedure adopted by the Board, to designate for
nomination by the Board two (2) nominees for election to the Board and (v) that
the Doubletree Holders together with the DeBoer/Fix Holders shall be entitled,
through a nominating committee or other procedure adopted by the Board, to
designate for nomination by the Board the President of the Company and/or such
number of independent directors for election to the Board as shall constitute
the remainder of the Board.
2.2. Board of Directors of the Company. (a) So long as it shall
hold any shares of Series A Preferred Stock, Series A Share Equivalents, Series
B Preferred Stock, Series B Share Equivalents or Subject Shares, each Holder
agrees to vote all of its shares of Series A Preferred Stock, Series A Share
Equivalents, Series B Preferred Stock, Series B Share Equivalents or Subject
Shares, as applicable, as to which it has voting rights for the election of all
directors nominated pursuant to the immediately preceding paragraph hereof. The
nominees designated by the Series A Preferred Holders and Series B Preferred
Holders shall be identified in a proxy statement delivered to the Company
stockholders in connection with an annual or special meeting.
(b) The Holders shall appear in person or by proxy at
any annual or special meeting of stockholders for the purpose of obtaining a
quorum and shall vote or cause the vote of the Series A Preferred Stock, Series
A Share Equivalents, Series B Preferred Stock, Series B Share Equivalents or
Subject Shares, as applicable, owned by such Holder or by any Affiliate of such
Holder, either in person or by proxy, to be cast in accordance with the
provisions of this Article 2.
(c) Each Holder further agrees to vote all the Series A
Preferred Stock, Series A Share Equivalents, Series B Preferred Stock, Series B
Share Equivalents or Subject Shares, as applicable, with respect to which it has
direct or indirect voting rights, in favor of removal from the Board, upon
notice by the DeBoer/Fix Holders, the Series A Purchaser Group, the Series B
Purchaser Group or the Doubletree Holders that an individual designated by them
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pursuant to Section 2.1 should be removed, and to use its best efforts to cause
the Board to fill the vacancy so vacated with another person designated by the
party providing such notice. Each Holder further agrees to cooperate fully in
connection with the nomination of Directors, the voting of its shares of Series
A Preferred Stock, Series A Share Equivalents, Series B Preferred Stock, Series
B Share Equivalents or Subject Shares, as applicable, the execution of written
consents (if then permissible under the Certificate of Incorporation of the
Company), the calling of meetings and other stockholder matters to effect the
provisions of this Article.
(d) If any director is unable to serve, or once having
commenced to serve, is removed or withdraws from the Board, the party or parties
who designated such director will be entitled to designate a person to fill the
vacancy on the Board so created and each Holder will use its best efforts to
cause the Board to fill the vacancy so created with the person so designated, in
accordance with the Company's By-laws.
(e) Each Holder agrees not to and not to permit any
Affiliate to grant any proxy or enter into or be bound by any voting trust with
respect to its Series A Preferred Stock, Series A Share Equivalents, Series B
Preferred Stock, Series B Share Equivalents or Subject Shares, as applicable, or
enter into any arrangements of any kind with any person with respect to its
Series A Preferred Stock, Series A Share Equivalents, Series B Preferred Stock,
Series B Share Equivalents or Subject Shares, as applicable, in any such case in
a manner that is inconsistent with the provisions of this Agreement.
(f) The Company shall use its best efforts to cause the
nominees (unless, after customary investigation of such person's qualifications,
the Board of Directors reasonably determines in good faith that such person is
not qualified or acceptable under standards applied fairly and equally to all
nominees) of each of the Holders pursuant to the provisions of this Article 2 to
be included in the slate of nominees recommended by the Board to the Company's
stockholders for election as directors, and the Company shall use its best
efforts to cause the election of such nominees, including voting all shares for
which the Company holds proxies (unless otherwise directed by the stockholder
submitting such proxy) or is otherwise entitled to vote, in favor of the
election of such person.
(g) In the event that the Board establishes committees
from time to time, at least one of the nominees of the Series B Purchaser Group
shall have the right, upon the request of the Series B Purchaser Group, to serve
on each such committee, including, without limitation, on any audit committee or
on any compensation committee.
2.3. Holder Representation. Each Holder represents and warrants
as to itself that as of the date hereof (after giving effect to all transactions
occurring in connection with the sale of the Series B Preferred Stock and
Warrants pursuant to the Securities Purchase Agreement) such Holder is not a
party with any other Person to any agreement other than this Agreement and the
Registration Rights Agreement with respect to the holding, voting, acquisition
or disposition of shares of Series A Preferred Stock, Series A Share
Equivalents, Series B Preferred Stock, Series B Share Equivalents or Subject
Shares, as applicable.
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2.4. 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.
2.5. 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 designate
persons for nomination, removal or the filling of vacancies and to exercise all
rights pursuant to Article 2 hereof. This proxy is coupled with an interest in
the Company 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.
2.6. Termination. (a) The rights and obligations of any holder
of Series A Preferred Stock, Series A Share Equivalents, Series B Preferred
Stock, Series B Share Equivalents or Subject Shares pursuant to this Agreement
shall terminate (i) as to any Significant Purchaser, if such Significant
Purchaser shall hold, beneficially or of record, less than 20% of the shares of
Series A Preferred Stock or Series A Share Equivalents purchased by such
Significant Purchaser pursuant to the Stock Purchase Agreement, (ii) as to any
rights (but not any obligations) of any holder of Series A Preferred Stock or
Series A Share Equivalents, upon waiver of such rights in writing, (iii) as to
any holder of Series A Share Equivalents, upon transfer of such Series A Share
Equivalents pursuant to a Public Sale, (iv) as to all holders of Series A
Preferred Stock or Series A Share Equivalents, upon failure of such holders or
their Permitted Transferees, collectively, to hold, beneficially or of record,
at least 20% of the shares of Series A Preferred Stock or Series A Share
Equivalents purchased pursuant to the Stock Purchase Agreement, (v) as to any
rights of any holder of Series B Preferred Stock or Series B Share Equivalents,
upon waiver of such rights in writing, (vi) as to any holder of Series B Share
Equivalents, upon transfer of such Series B Share Equivalents pursuant to a
Public Sale, (vii) as to all holders of Series B Preferred Stock or Series B
Share Equivalents, upon failure of such holders or their Permitted Transferees,
collectively, to hold, beneficially or of record, at least 20% of the shares of
Series B Preferred Stock or Series B Share Equivalents purchased pursuant to the
Securities Purchase Agreement and (viii) as to the holders of the Doubletree
Shares or the
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DeBoer/Fix Shares, upon both the failure of such holders or their Permitted
Transferees, collectively, to hold, beneficially or of record, at least 20% of
the outstanding voting interests of the Company and the termination of the
rights of the Series A Preferred Holders and Series B Preferred Holders pursuant
to subsections (iv) and (vii) hereof.
(b) Each of the parties hereto hereby acknowledge and
agree that, as of the date hereof, the rights and obligations of those
individuals listed on Schedule A-3 hereto (the "Individual Investor Holders")
under the Second Stockholders Agreement shall be terminated and, except to the
extent that any such Individual Investor Holder is a Permitted Transferee of any
other party hereto, the Individual Investor Holders shall have no rights or
obligations under this Agreement.
ARTICLE III.
GENERAL PROVISIONS
3.1. Legend on Share Certificates. (a) All certificates for
shares of Series A Preferred Stock, Series A Share Equivalents, Series B
Preferred Stock, Series B Share Equivalents or Subject Shares which are subject
to the terms and provisions of Article 2, in addition to such other legends as
may be required by law, shall bear the legend set forth in Article VII of the
Stock Purchase Agreement or Article VII of the Securities Purchase Agreement, as
applicable, and the following legend:
The shares represented by this certificate are also subject to certain
requirements as to voting contained in the Amended and Restated
Stockholders Agreement, dated July 10, 1998, among the Company, and
certain stockholders, a copy of which is on file with the Secretary of
the Company.
(b) Upon the termination of this Agreement with respect
to any shares of Series A Preferred Stock, Series A Share Equivalents, Series B
Preferred Stock, Series B Share Equivalents or Subject Shares pursuant to
Section 2.6, each Holder shall be entitled to receive, in exchange for any
certificate bearing the legend described in subsection (a) of this Section 3.1,
a certificate only bearing the legend set forth in Article VII of the Stock
Purchase Agreement or Article VII of the Securities Purchase Agreement, as
applicable, unless the Company shall have determined (based upon advice of legal
counsel) that such legend is no longer required by law.
ARTICLE IV.
MISCELLANEOUS
4.1. Injunctive Relief. It is acknowledged that it will be
impossible to measure in money the damages that would be suffered if the parties
fail to comply with certain of the obligations imposed on them by this Agreement
and that, in the event of any such failure, an aggrieved Person will be
irreparably damaged and will not have an adequate remedy at law. Any such Person
shall, therefore, be entitled to injunctive relief and/or specific performance
to enforce such obligations, and if any action should be brought in equity to
enforce any of such
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provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
4.2. Further Assurances. Each party hereto shall do and perform
or cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto reasonably may request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
4.3. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the laws of the State of Delaware.
4.4. Entire Agreement; Amendment; Waiver. This Agreement (i)
contains the entire agreement among the parties hereto with respect to the
subject matter hereof, (ii) may not be amended or supplemented except by an
instrument or counterparts thereof in writing signed by at least 66-2/3% of the
Holders or their Agent or Proxy and, if such amendment or supplement adversely
affects (x) any holder of Series A Preferred Stock or Series A Share
Equivalents, 100% of the Series A Preferred Holders or (y) any holder of Series
B Preferred Stock or Series B Shares Equivalents, 100% of the Series B Preferred
Holders and (iii) may not be discharged except by such written instrument or by
performance. Any such amendment so approved shall be binding on all Holders. No
waiver of any term or provision shall be effective unless in writing signed by
the party to be charged. The Second Stockholders Agreement, as in existence
prior to the execution hereof, among the Initial Holders and the parties listed
on Schedule A thereto, is hereby terminated and shall be after the date hereof
null and void and of no further force and effect.
4.5. Binding Effect. This Agreement shall be binding on and
inure to the benefit of the parties hereto and, subject to the terms and
provisions hereof, their respective legal representatives, successors and
assigns.
4.6. Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction.
4.7. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, all of which shall be deemed but one
and the same instrument and each of which shall be deemed an original, and it
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
4.8. Notices. All notices and other communications provided for
or given or made hereunder shall be in writing (including delivery by facsimile
transmission) and, unless otherwise provided herein, shall be deemed to have
been given when received by the party to whom such notice is to be given at its
address set forth in the Stock Purchase Agreement with respect
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to the Series A Preferred Holders and in the Securities Purchase Agreement with
respect to the Series B Preferred Holders, or such other address for the party
as shall be specified by notice given pursuant hereto.
4.9. Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute part of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
CANDLEWOOD HOTEL COMPANY, INC.
By: /S/ JACK P. DEBOER
---------------------------------
Name: Jack P. DeBoer
Title: Chief Executive Officer
DOUBLETREE CORPORATION
By: /S/ PETER H. KESSER
---------------------------------
Name: Peter H. Kesser
Title: Vice President
WARREN D. FIX FAMILY PARTNERSHIP, L.P.
By: /S/ WARREN D. FIX
---------------------------------
Name: Warren D. Fix
Title: General Partner
/S/ WARREN D. FIX
----------------------------------------
Warren D. Fix
JACK P. DeBOER, for himself and on
behalf of the ALEXANDER DeBOER TRUST
DATED MARCH 14, 1995 and the CHRISTOPHER
SCOTT DeBOER TRUST DATED MARCH 14, 1995
/S/ JACK P. DEBOER
----------------------------------------
Name: Jack P. DeBoer
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OLYMPUS GROWTH FUND II, L.P.
By: OGP II, L.P., its General Partner
By: RSM, L.L.C., its General
Partner
By: /S/ ROBERT S. MORRIS
--------------------
Name: Robert S. Morris
Title: Managing Member
OLYMPUS EXECUTIVE FUND, L.P.
By: OEF II, L.P., its General Partner
By: RSM, L.L.C., its General
Partner
By: /S/ ROBERT S. MORRIS
--------------------
Name: Robert S. Morris
Title: Managing Member
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, AS TRUSTEE OF THE COMMINGLED
PENSION TRUST FUND (MULTI-MARKET SPECIAL
INVESTMENT FUND II) OF MORGAN GUARANTY
TRUST COMPANY OF NEW YORK
By: /S/ KATHLEEN N. STARRS
---------------------------------
Name: Kathleen N. Starrs
Title: Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, AS TRUSTEE OF THE MULTI-MARKET
SPECIAL INVESTMENT TRUST FUND OF MORGAN
GUARANTY TRUST COMPANY OF NEW YORK
By: /S/ KATHLEEN N. STARRS
---------------------------------
Name: Kathleen N. Starrs
Title: Vice President
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MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, AS INVESTMENT MANAGER AND AGENT
FOR THE ALFRED P. SOLAN FOUNDATION
(MULTI-MARKET ACCOUNT)
By: /S/ KATHLEEN N. STARRS
---------------------------------
Name: Kathleen N. Starrs
Title: Vice President
CHASE VENTURE CAPITAL ASSOCIATES, L.P.
By: Chase Capital Partners, its
General Partner
By: /S/ JAMES D. KALLMAN
--------------------------
Name: James D. Kallman
Title: General Partner
PRIVATE EQUITY INVESTORS III, L.P.
By: Rohit M. Desai Associates III,
LLC, General Partner
By: /S/ FRANK PADOS
--------------------------
Name: Frank Pados
Title: Attorney-In-Fact
EQUITY-LINKED INVESTORS-II
By: Rohit Desai Associates III,
General Partner
By: /S/ FRANK PADOS
--------------------------
Name: Frank Pados
Title: Attorney-In-Fact
LNR CANDLEWOOD HOLDINGS, INC.
By: /S/ JEFFREY P. KRASNOFF
---------------------------------
Name: Jeffrey P. Krasnoff
Title: President
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DELAWARE STATE EMPLOYEES' RETIREMENT
FUNDS
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /S/ ROBERT CRESCI
--------------------------
Name: Robert Cresci
Title: Managing Director
DECLARATION OF TRUST FOR THE DEFINED
BENEFIT PLAN OF ZENECA HOLDINGS INC.
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /S/ ROBERT CRESCI
--------------------------
Name: Robert Cresci
Title: Managing Director
DECLARATION OF TRUST FOR THE DEFINED
BENEFIT PLAN OF ICI AMERICAN HOLDINGS
INC.
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /S/ ROBERT CRESCI
--------------------------
Name: Robert Cresci
Title: Managing Director
J.W. McCONNELL FAMILY TRUST
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /S/ ROBERT CRESCI
--------------------------
Name: Robert Cresci
Title: Managing Director
14
15
ADVANCE CAPITAL PARTNERS, L.P.
By: Advance Capital Associates, L.P.
By: Advance Capital Management,
LLC
By: /S/ ROBERT A. BERNSTEIN
--------------------------
Name: Robert A. Bernstein
Title: Principal
ADVANCE CAPITAL OFFSHORE PARTNERS, L.P.
By: Advance Capital Offshore Associates,
LDC
By: Advance Capital Associates, L.P.
By: Advance Capital Management,
LLC
By:/S/ ROBERT A. BERNSTEIN
---------------------
Name: Robert A. Bernstein
Title: Principal
ALLIED CAPITAL CORPORATION
By: /S/ G. CABELL WILLIAMS, III
------------------------------------
Name: G. Cabell Williams, III
Title: Managing Director
ALLIED CAPITAL CORPORATION II
By: /S/ G. CABELL WILLIAMS, III
------------------------------------
Name: G. Cabell Williams, III
Title: Managing Director
THE FFJ 1997 NOMINEE TRUST
By: /S/ SAMUEL T. BYRNE
------------------------------------
Name: Samuel T. Byrne
Title: Trustee
15
16
THE MUTUAL LIFE INSURANCE COMPANY OF NEW
YORK
By: /S/ SUZANNE E. WALTON
------------------------------------
Name: Suzanne E. Walton
Title: Managing Director
J. ROMEO & CO.
By: /S/ PETER COCCIA
------------------------------------
Name: Peter Coccia
Title: Partner
HARBOR INVESTMENTS LTD.
By: Strong Capital Management, Inc., its
Investment Advisor
By: /S/ STEPHEN J. SHENKENBERG
-------------------------------
Name: Stephen J. Shenkenberg
Title: Vice President & Acting General
Counsel
STRONG SPECIAL INVESTMENT LIMITED
PARTNERSHIP
By: Strong Capital Management, Inc., its
General Partner
By: /S/ STEPHEN J. SHENKENBERG
-------------------------------
Name: Stephen J. Shenkenberg
Title: Vice President & Acting General
Counsel
STRONG QUEST LIMITED PARTNERSHIP
By: Strong Capital Management, Inc., its
Investment Advisor
By: /S/ STEPHEN J. SHENKENBERG
-------------------------------
Name: Stephen J. Shenkenberg
Title: Vice President & Acting General
Counsel
16
17
Acknowledgment and Agreement:
Each of the undersigned acknowledges and agrees to the termination of the Second
Stockholders Agreement as of the date hereof.
*
-----------------------------------
William J. Abrams
*
-----------------------------------
Joseph P. Adams, Jr.
*
-----------------------------------
Eric Anderson
*
-----------------------------------
Robert P. Brennan, Jr.
*
-----------------------------------
Robert Brody
*
-----------------------------------
Vanessa Burgess
*
-----------------------------------
Craig Callen
*
-----------------------------------
Michael Dana
/S/ PETER DEEKS
-----------------------------------
Peter Deeks
*
-----------------------------------
Robert E. Diemar, Jr.
*
-----------------------------------
David Hurwitz
*
-----------------------------------
Steve Kantor
*
-----------------------------------
Louis Klevan
17
18
*
-----------------------------------
Larry Lavine
*
-----------------------------------
Daniel J. Mackell
*
-----------------------------------
Patrick McMullan
*
-----------------------------------
Andrew J. McSpadden
*
-----------------------------------
David R. Smith
*
-----------------------------------
Phil Tager
*
-----------------------------------
Douglas M. Weill
/S/ CHARLES RUCK
-----------------------------------
Charles Ruck
*By: Peter Deeks
Attorney-in-Fact
/S/ PETER DEEKS
-----------------------------------
Peter Deeks
18