VOTING AGREEMENT
THIS VOTING AGREEMENT is made October 27, 2003, among
Hospitality Properties Trust, a Maryland real estate investment trust ("HPT"),
Six Continents Hotels, Inc., a Delaware corporation ("SCH") and those
stockholders of Candlewood Hotel Company, Inc. ("CHC") listed on Schedule A, as
updated from time to time in accordance with Section 5.10 hereof (the
"Stockholders").
RECITALS:
1. As of the date hereof, each Stockholder beneficially
owns and is entitled to vote the number of (a) shares of common stock, par value
$0.01 per share ("CHC Common Stock"), of CHC or (b) shares of Series A
Cumulative Convertible Preferred Stock, par value $0.01 per share, of CHC ("CHC
Series A Stock") or (c) shares of Series B Cumulative Convertible Preferred
Stock, par value $0.01 per share, of CHC ("CHC Series B Stock", and collectively
with the CHC Series A Stock, the "CHC Preferred Stock") set forth opposite such
Stockholder's name on Schedule B hereto.
2. HPT and CHC and certain of its affiliates are
contemporaneously entering into that certain Purchase and Sale Agreement (the
"Hotel Purchase Agreement"), SCH and CHC are contemporaneously entering into
that certain Asset Purchase and Sale Agreement (the "Brand Purchase Agreement")
and HPT CW Properties Trust, Xxxx X. Xxxxxx, Trustee of HPT CW MA Realty Trust,
HH HPT XX XX Properties LLC, HPT, CHC and Candlewood Leasing No. 1, Inc. are
contemporaneously entering into that certain Termination Agreement (the
"Termination Agreement", and together with the Hotel Purchase Agreement and the
Brand Purchase Agreement, the "Transaction Agreements").
3. In order to induce HPT, SCH and their respective
affiliates to enter into the Transaction Agreements and perform their respective
obligations thereunder, the Stockholders desire to make certain representations,
warranties and agreements.
In consideration of the foregoing, the parties agree as
follows:
SECTION I
DEFINITIONS
The terms set forth below shall have the following meanings:
1.1 "beneficially own": shall have the meaning set forth in Rule
13d-3 under the Securities Exchange Act of 1934 Act, as amended (the "1934
Act").
1.2 "CHC Charter Documents": shall mean CHC's Restated Certificate
of Incorporation (including any Certificates of Designation) and by-laws, in
each case, as amended.
1.3 "CHC Stock": shall mean the CHC Common Stock and the CHC
Preferred Stock.
1.4 "Discretionary Accounts": shall mean (i) JPMorgan Chase Bank,
formerly known as Xxxxxx Guaranty Trust Company of New York, as Trustee of the
Commingled Pension Trust Fund (Multi-Market Special Investment Fund II) of
JPMorgan Chase Bank, (ii) JPMorgan Chase Bank, formerly known as Xxxxxx Guaranty
Trust Company of New York, as Trustee of the Multi-Market Special Investment
Trust Fund of JPMorgan Chase Bank, (iii) JPMorgan Chase Bank, formerly known as
Xxxxxx Guaranty Trust Company of New York, as Investment Manager and Agent for
the Xxxxxx X. Xxxxx Foundation (Multi-Market Account) and (iv) Xxxx'x Management
Partners Ltd.
1.5 "Effective Time": shall mean the time at which the
transactions contemplated by the Transaction Agreements close.
1.6 "Party": shall mean HPT, SCH and each of the Stockholders.
1.7 "Person": shall mean an individual, corporation, limited
liability company, partnership, association, trust or any other entity or
organization, including any domestic or foreign governmental, administrative,
judicial or regulatory authority.
1.8 "Purchase Proposal": shall mean any offer or proposal
concerning any (A) merger, consolidation, business combination, or similar
transaction involving CHC or any of its subsidiaries, (B) sale, lease or other
disposition directly or indirectly by merger, consolidation, business
combination, share exchange, joint venture, or otherwise of assets representing
25% or more of the consolidated assets of CHC and its subsidiaries or any of (x)
the "Properties" (as defined in the Hotel Purchase Agreement) or (y) the
"Assets" (as defined in the Brand Purchase Agreement), (C) issuance, sale, or
other disposition of (including by way of merger, consolidation, business
combination, share exchange, joint venture, or any similar transaction)
securities (or options, rights or warrants to purchase, or securities
convertible into or exchangeable for such securities) of CHC or any of the
"Sellers" (as defined in the Hotel Purchase Agreement), (D) transaction in which
any person shall acquire beneficial ownership, or the right to acquire
beneficial ownership or any group shall have been formed which beneficially owns
or has the right to acquire beneficial ownership of 25% or more of the
outstanding voting capital stock of CHC or (E) any combination of the foregoing;
provided however, that any offer or proposal relating to the transactions
contemplated by the Transaction Agreements shall not constitute a "Purchase
Proposal".
1.9 "Transfer" shall mean any sale, transfer, assignment, pledge,
encumbrance or other disposition, including through any "short sale" or
derivative transactions.
SECTION II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
2.1 Representations and Warranties of the Stockholders. Each
Stockholder represents and warrants, severally but not jointly, to HPT:
(a) Ownership of CHC Stock. Set forth in Schedule B
opposite the name of such Stockholder are all shares of CHC Stock owned of
record or beneficially by such Stockholder as of the date hereof. Except as set
forth in Schedule B, (i) such Stockholder has the exclusive right to vote such
securities in the manner required under this Agreement and (ii) there are no
options, warrants or other rights, agreements, arrangements or commitments of
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any character to which such Stockholder is a party relating to the pledge,
disposition or voting of any such securities (other than this Agreement) which
would prevent such Stockholder from voting such securities in the manner
required under this Agreement; provided that with respect to shares of CHC Stock
held in the Discretionary Accounts, such representation is qualified by, subject
to, and does not apply to the extent of, any rights of the beneficial owners or
clients of the Discretionary Accounts to cause a Transfer of such securities or
to have such securities returned to them and thereafter to vote or cause such
securities to be voted.
(b) Organization of Certain Stockholders. If such
Stockholder is a corporation, partnership, limited liability company or other
entity, such Stockholder is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation or incorporation.
(c) Authority to Execute and Perform Agreements. Such
Stockholder has the requisite power and authority required to enter into,
execute and deliver this Agreement and to perform fully such Stockholder's
obligations hereunder. The execution and delivery of this Agreement by such
Stockholder have been duly authorized by all requisite organizational action, if
any, on the part of such Stockholder. This Agreement has been duly executed and
delivered and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other laws affecting creditors' rights and remedies generally
and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(d) No Conflicts; Consents.
(i) The execution and delivery by such
Stockholder of this Agreement does not, and the consummation
of the transactions contemplated hereby will not, conflict
with or result in any violation of or default (with or without
notice or lapse of time, or both) under (A) any contract,
agreement or other binding arrangement to which such
Stockholder is a party or (B) any judgment, order, writ,
injunction or decree of any court, governmental body,
administrative agency or arbitrator applicable to such
Stockholder.
(ii) No consents, authorizations, orders or
approvals of any governmental commission, board, or other
regulatory body are required to be obtained or made by such
Stockholder in connection with the execution and delivery by
such Stockholder of this Agreement and the consummation of the
transactions contemplated hereby.
(e) Investigation. Such Stockholder has had a full
opportunity to review and discuss this Agreement and the Transaction Agreements
and to ask all questions of HPT, SCH, CHC and CHC's directors and executive
officers necessary in order for such Stockholder to make an informed decision to
enter into this Agreement.
2.2 Representations and Warranties of HPT and SCH. Each of SCH and
HPT, in each instance solely with respect to itself, represents and warrants to
the Stockholders that (i) it is duly organized and validly existing under the
laws of the jurisdiction of its formation, (ii) it has all necessary power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, (iii) it has duly authorized, by all necessary
action, the execution and delivery of this Agreement and the consummation of the
transactions
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contemplated hereby by HPT and SCH, (iv) its execution and delivery of this
Agreement does not, and the consummation of the transactions contemplated hereby
will not, conflict with or result in any violation of or default (with or
without notice or lapse of time, or both) under (A) any contract, agreement or
other binding arrangement to which it is a party or (B) any judgment, order,
writ, injunction or decree of any court, governmental body, administrative
agency or arbitrator applicable to it, (v) no consents, authorizations, orders
or approvals of any governmental commission, board, or other regulatory body are
required to be obtained or made by it in connection with it execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby, and (vi) this Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of it, enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, or other laws affecting creditors'
rights and remedies generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
SECTION III
VOTING; WAIVER OF RIGHTS
3.1 Agreement to Vote. Each Stockholder hereby agrees that, at any
meeting of the stockholders of CHC, however called, and at every adjournment
thereof, and in any action by written consent of the stockholders of CHC, to
vote all of the shares of CHC Stock to which he is entitled to vote (including,
without limitation, shares of any class of CHC Preferred Stock whether such
shares are to be voted separately as a class or, together with shares of other
classes or on an as-converted basis, each in accordance with CHC's Charter
Documents, as applicable):
(a) in favor of (i) approval of the terms of the
transactions contemplated by the Transaction Agreements, with any modifications
that are approved by such Stockholder, (ii) any action required to consummate
such transactions and (iii) the adoption of the Plan of Dissolution of CSC in
substantially the form attached hereto as Exhibit A with any modifications that
are approved by such Stockholder, provided that each of the matters listed in
clauses (i), (ii) and (iii) of this Section 3.1(a) are contemporaneously
approved;
(b) against any Purchase Proposal;
(c) prior to the Effective Time, against any action or
proposal involving CHC or any CHC subsidiary that is intended, or could
reasonably be expected, to prevent, impede, interfere with, delay, postpone or
adversely affect the transactions contemplated by the Transaction Agreements;
(d) in favor of the amendment to CHC's certificate of
incorporation to change the name of CHC; and
(e) in favor of the adoption of the Certificate of
Amendment of 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 and Series B Cumulative Convertible Preferred Stock
of CHC, in the form attached hereto as Exhibit B.
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SECTION IV
COVENANTS
4.1 No Disposition of Shares Prior to Effective Time. Each
Stockholder covenants and agrees that, prior to the Effective Time, such
Stockholder shall not Transfer any of the shares of CHC Stock set forth opposite
his name on Schedule B as to which such Stockholder has or shares dispositive
power; provided that with respect to shares of CHC Stock held in the
Discretionary Accounts, such representation is qualified by, subject to, and
does not apply to the extent of, any right of the beneficial owners or clients
of the Discretionary Accounts to cause a Transfer of such securities or to have
such securities returned to them and thereafter to vote or cause such securities
to be voted.
4.2 Voting Arrangements. Each Stockholder covenants and agrees
that, except pursuant to this Agreement, prior to the Effective Time such
Stockholder shall:
(a) not act in concert with any Person to solicit or
participate, directly or indirectly, in any solicitation of proxies or powers of
attorney or similar rights to vote from any holder of CHC Stock, or with respect
to any action, proposal, transaction or agreement that would reasonably be
expected to lead to a Purchase Proposal, or to recommend that the Stockholders
vote in favor of a Purchase Proposal except as otherwise expressly provided by
Section 3 of this Agreement;
(b) not, directly or indirectly: (A) solicit, initiate,
encourage, take any action to facilitate or induce any inquiry with respect to,
or the making, submission or announcement of, any proposal or offer (including
any proposal or offer to the Stockholders) that constitutes or may reasonably be
expected to lead to any Purchase Proposal, (B) furnish to any Person other than
HPT, SCH or their respective affiliates any information with respect to any
Purchase Proposal (except as required by law or regulatory authority), (C)
participate in or engage in discussions or negotiations with any Person with
respect to any Purchase Proposal, except to notify such Person as to the
existence of these provisions, (D) approve, endorse or recommend any Purchase
Proposal, or (E) enter into any letter of intent or similar document or any
agreement, commitment or understanding contemplating or otherwise relating to
any Purchase Proposal or a transaction contemplated thereby. Each Stockholder
shall, and each Stockholder other than the Discretionary Accounts and X.X.
Xxxxxx Partners (SBIC), LLC (formerly known as Chase Venture Capital Associates,
L.P.) shall cause its affiliates to, immediately cease and cause to be
terminated all existing discussions or negotiations with any parties conducted
heretofore with respect to a Purchase Proposal; and
(c) Notwithstanding any of the provisions of this
Agreement, if a Stockholder is a member of the Board of Directors of CHC or has
an officer, employee or other representative who is a member of the Board of
Directors of CHC, nothing herein shall be construed to obligate such Stockholder
or such officer, employee or representative to act in his capacity as a director
in any manner which may conflict with such Stockholder's or such officer's,
employee's or representative's fiduciary duties as a director of CHC.
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SECTION V
MISCELLANEOUS
5.1 Termination.
(a) This Agreement shall terminate, and none of the
Parties hereto shall have any rights or obligations hereunder and this Agreement
shall become null and void and have no effect upon the earliest to occur of (i)
the consent of each of HPT, SCH and each Stockholder, (ii) the termination of
either the Hotel Purchase Agreement or the Brand Purchase Agreement or (iii)
February 28, 2004.
(b) This Agreement shall terminate with respect to a
Discretionary Account and such Discretionary Account shall have no further
obligations hereunder, at such time as shares of CHC Stock are no longer held in
such Discretionary Account.
5.2 Notices. All notices, communications and deliveries required
or permitted by this Agreement shall be made in writing signed by the Party
making the same, shall specify the section of this Agreement pursuant to which
it is given or being made, and shall be deemed given or made (i) on the date
delivered if delivered by telecopy or in person, or (ii) on the day after it is
delivered, prepaid, to an overnight express delivery service that confirms to
the sender delivery on such day, as follows:
If to HPT, to:
Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Telecopy No.: 617.969.5730
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Telecopy No.: (000) 000-0000
If to SCH, to:
Six Continents Hotels, Inc.
Suite 000
Xxxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxx
with copies to:
Six Continents Hotels, Inc.
Xxxxx 000
- 0 -
Xxxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 30346-2149
Attn: Xxxxxx Xxxxxxx
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx Xxxxxx, Esq.
If to the Stockholders, to:
such Stockholder at the address set forth on Schedule A;
with a copy to (only with respect to holders of CHC Preferred
Stock):
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxxxxx
or to such other representative or at such other address of a Party as such
Party may furnish to the other Parties in writing.
5.3 Interpretation.
(a) When a reference is made in this Agreement to a
section or schedule such reference shall be to a section or schedule of this
Agreement unless otherwise clearly indicated to the contrary.
(b) The schedules and all documents expressly referred to
in this Agreement are incorporated into this Agreement and are made a part of
this Agreement as if set out in full.
(c) The titles and captions contained in this Agreement
are inserted only as a matter of convenience and for reference and in no way
define, limit, extend or describe the scope of this Agreement or the intent of
any provision of this Agreement.
(d) The words "hereof", "herein" and "herewith" and words
of similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement.
(e) The plural of any defined term shall have a meaning
correlative to such defined term, and words denoting any gender shall include
all genders. Where a word or phrase is defined herein, each of its other
grammatical forms shall have a corresponding meaning.
(f) The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties, and no presumption or burden
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of proof shall arise favoring or disfavoring a Party by virtue of the authorship
of any provision of this Agreement.
5.4 Assignment; Successors in Interest. This Agreement shall not
be assigned by operation of law or otherwise without the prior written consent
of each of the Parties. This Agreement shall be binding upon and shall inure to
the benefit of the Parties and their successors and assigns, and any reference
to a Party shall also be a reference to a successor or assign. For the avoidance
of doubt, the preceding sentence shall not apply to any beneficial owner or
client of a Discretionary Account to which shares of CHC Stock have been
returned.
5.5 No Third-Party Beneficiaries. With the exception of the
Parties and Intercontinental Hotel Group Resources, Inc., which the Parties
agree is an intended third party beneficiary to the extent a vote in favor of
the transactions contemplated by the Brand Purchase Agreement is required, there
shall exist no right of any Person to claim a beneficial interest in this
Agreement or any rights occurring by virtue of this Agreement.
5.6 Amendments. To the extent permitted by law, this Agreement may
be amended only by a subsequent writing signed by all of the Parties.
5.7 Controlling Law; Integration; Waiver; Waiver of Trial by Jury.
(a) This Agreement and the transactions contemplated
hereby, and all disputes between the parties under or related to the Agreement
or the facts and circumstances leading to its execution, whether in contract,
tort or otherwise, shall be governed by and construed in accordance with the
Laws of the State of Delaware, without regard to the application of Delaware
principles of conflicts of laws.
(b) This Agreement supersedes all negotiations,
agreements and understandings among the Parties with respect to the subject
matter of this Agreement, constitutes the entire agreement among the Parties.
The failure of any Party at any time or times to require performance of any
provisions of this Agreement shall in no manner affect the right to enforce the
same.
(c) No waiver by any Party of any conditions, or of the
breach of any term, provision, warranty, representation, agreement or covenant
contained in this Agreement, whether by conduct or otherwise, in any one or more
instances shall be deemed or construed as a further or continuing waiver of any
such condition or breach of any other term, provision, warranty, representation,
agreement or covenant contained in this Agreement.
(d) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS
AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH
- 8 -
WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
5.7(d).
5.8 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, and any such
prohibition or unenforceability in any jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by law, the Parties waive any provision of law which renders any such
provision prohibited or unenforceable in any respect.
5.9 Further Assurances. Each Party shall execute and deliver such
additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
5.10 Additional Stockholders. The Parties agree that, from time to
time after the date hereof, additional Stockholders may be added as parties
hereto by executing a counterpart of this Agreement or an instrument, reasonably
acceptable to HPT, whereby such Stockholder shall join in and become a party to
this Agreement as a Stockholder and shall agree to be bound by and to perform
all obligations of a Stockholder hereunder, without in either case further
action by any Party. In each such event, the Schedules A and B shall be updated
to reflect information relating to such Stockholder.
5.11 Specific Performance. The Parties agree that the remedy at law
for any breach of this Agreement will be inadequate and that any Party by whom
this Agreement is enforceable shall be entitled to specific performance in
addition to any other appropriate relief or remedy. Such Party may, in its sole
discretion, apply to a court of competent jurisdiction for specific performance
or injunctive or such other equitable relief as such court may deem just and
proper in order to enforce this Agreement or prevent any violation hereof and,
to the extent permitted by applicable law, each Party waives any objection to
the imposition of such equitable relief on the basis that there is an adequate
remedy at law.
5.12 Several and Not Joint Obligations. The obligations of the
Stockholders under this Agreement are the several and not joint obligations,
each Stockholder has made an individual and separate decision relating to his
execution of this Agreement, and the Stockholders shall not by action of this
Agreement (i) be deemed to be acting in concert or as a "group" (within the
meaning of Section 13(d)(3) of the 0000 Xxx) or (ii) be deemed to have formed a
partnership or joint venture.
5.13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or the terms of this Agreement to
produce or account for more than one of such counterparts.
5.14 Declaration of Trust of HPT. The Declaration of Trust of HPT,
a copy of which is duly filed with the Department of Assessments and Taxation of
the State of Maryland, provides that the name "Hospitality Properties Trust"
refers to the trustees under such Declaration of Trust collectively as trustees,
but not individually or personally, and that no trustee, officer, stockholder,
employee or agent of HPT shall be held to any personal liability, jointly or
severally,
- 9 -
for any obligation of, or claim against, HPT. All persons dealing with HPT in
any way shall look only to the assets of HPT for the payment of any sum or the
performance of any obligation.
5.15 Non-Recourse. Notwithstanding anything contained in this
Agreement to the contrary, it is expressly understood and agreed by the parties
hereto that each and every warranty, representation, covenant and agreement made
in this Agreement on the part of any of the Stockholders which is a corporation,
trust, partnership or limited liability company was not made or intended to be
made as a personal or individual warranty, representation, covenant or agreement
on the part of the incorporator or any stockholder (including any holder of
preferred stock of CHC), director, officer, trustee, member, manager, agent,
general or limited partner, past, present or future, of a Stockholder, and no
personal or individual liability or responsibility is assumed by and no recourse
at any time shall be asserted or enforced against, any such incorporator,
stockholder (including any holder of preferred stock of CHC), director, officer,
trustee, member, manager, agent, general or limited partner, past, present or
future, of such Stockholder, or any of them, all of such recourse, whether in
common law, in equity, by statute or otherwise) is hereby forever waived and
released, provided that for purposes of obtaining specific performance only and
for no other purpose whatsoever, this Agreement may be enforced against the
general partner of any Stockholder which is a limited partnership and provided
further that the provisions of this Section 5.15 shall have no application to
any Stockholder who is a natural person with respect to whom the warranties,
representations, covenants and agreements are personal and individual and
against whom there shall be recourse and individual liability and
responsibility.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXHIBIT 1
IN WITNESS WHEREOF, each of the parties hereto had caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
Hospitality Properties Trust
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
Six Continents Hotels, Inc.
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: President, the Americas
STOCKHOLDER:
X.X. Xxxxxx Partners (SBIC), LLC,
formerly known as Chase Venture Capital
Associates, L.P.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
STOCKHOLDER:
JPMorgan Chase Bank, formerly known as
Xxxxxx Guaranty Trust Company of
New York, as Trustee of the
Commingled Pension Trust Fund
(Multi-Market Special Investment
Fund II) of JPMorgan Chase Bank
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
STOCKHOLDER:
JPMorgan Chase Bank, formerly known as
Xxxxxx Guaranty Trust Company of New York,
as Trustee of the Multi-Market Special
Investment Trust Fund of JPMorgan Chase Bank
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
STOCKHOLDER:
JPMorgan Chase Bank, formerly known as
Xxxxxx Guaranty Trust Company of New York,
as Investment Manager and Agent for the
Xxxxxx X. Xxxxx Foundation
(Multi-Market Account)
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
STOCKHOLDER:
Olympus Executive Fund, L.P.
By: General Partner
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Member
STOCKHOLDER:
Olympus Growth Fund II, L.P.
By: General Partner
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Member
STOCKHOLDER:
Xxxx'x Management Partners Ltd.
By: Xxxx'x Management Partners
as Investment Manager and Agent
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
STOCKHOLDER:
Equity-Linked Investors-II
By: Xxxxx X. Xxxxx Associates-II
General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Attorney in Fact
STOCKHOLDER:
Private Equity Investors III, L.P.
By: Xxxxx X. Xxxxx Associates-II
General Partner
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Attorney in Fact
STOCKHOLDER:
MONY Life Insurance Company
By: J. ROMEO & CO. as nominee
for MONY Life Insurance Company
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: A Partner
STOCKHOLDER:
Xxxx X. XxXxxx
/s/ Xxxx X. XxXxxx
--------------------------------------------
Xxxx X. XxXxxx
STOCKHOLDER:
Arbor Lake Club, Ltd.
By: Lennar Commercial Properties, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
SCHEDULE A
----------------------------------------------------------------------------------------------------------------
STOCKHOLDER ADDRESS
----------------------------------------------------------------------------------------------------------------
X.X. Xxxxxx Chase Partners (SBIC), LLC, formerly known as X.X. Xxxxxx Partners
Chase Venture Capital Associates, L.P. 1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------------------------------------------------------------------
XX Xxxxxx Xxxxx Bank, formerly known as Xxxxxx Guaranty Trust JPMorgan Chase Bank
Company of New York, as Trustee of the Commingled Pension 000 Xxxx Xxxxxx
Trust Fund (Multi-Market Special Investment Fund II) of Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
----------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank, formerly known as Xxxxxx Guaranty Trust JPMorgan Chase Bank
Company of New York, as Trustee of the Multi-Market Special 000 Xxxx Xxxxxx
Investment Trust Fund of JPMorgan Xxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank, formerly known as Xxxxxx Guaranty Trust JPMorgan Chase Bank
Company of New York, as Investment Manager and Agent for the 000 Xxxx Xxxxxx
Xxxxxx X. Xxxxx Foundation (Multi-Market Account) Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------------------------------------------------------------------
Olympus Executive Fund, L.P. Olympus Partners
Metro Center, Xxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
----------------------------------------------------------------------------------------------------------------
Olympus Growth Fund II, L.P. Olympus Partners
Metro Center, Xxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
----------------------------------------------------------------------------------------------------------------
Xxxx'x Management Partners, Ltd. (Xxxx'x Management Partners Xxxx'x Management Partners, Ltd.
as Investment Manager and Agent) Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------------------------------------------------------------------
MONY Life Insurance Company MONY Life Insurance Company
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------------------------------------------------------------------
Equity-Linked Investors-II Xxxxx Capital Management Incorporated
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------------------------------------------------------------------
Private Equity Investors III, X.X. Xxxxx Capital Management Incorporated
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
----------------------------------------------------------------------------------------------------------------
Xxxx X. XxXxxx Candlewood Hotel Company, Inc.
0000 X. 00xx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxx 00000
----------------------------------------------------------------------------------------------------------------
Arbor Lake Club, Ltd. c/o LNR Property Corporation
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
----------------------------------------------------------------------------------------------------------------
SCHEDULE B
------------------------------------------------------------------------------------------------------------------
SERIES A SERIES B OPTIONS/
STOCKHOLDER COMMON STOCK PREFERRED PREFERRED WARRANTS
------------------------------------------------------------------------------------------------------------------
X.X. Xxxxxx Partners (SBIC), LLC, 7,000
formerly known as
Chase Venture Capital Associates, L.P.
-----------------------------------------------------------------------------------------------------------------
XX Xxxxxx Xxxxx Bank, formerly known as Xxxxxx 7,000
Guaranty Trust Company of New York, as Trustee of
the Commingled Pension Trust Fund (Multi-Market
Special Investment Fund II) of JPMorgan Chase Bank
-----------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank, formerly known as Xxxxxx 1,500
Guaranty Trust Company of New York, as Trustee of
the Multi-Market Special Investment Trust Fund of
JPMorgan Chase Bank
-----------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank, formerly known as Xxxxxx 1,500
Guaranty Trust Company of New York, as Investment
Manager and Agent for the Xxxxxx X. Xxxxx
Foundation (Multi-Market Account)
-----------------------------------------------------------------------------------------------------------------
Olympus Executive Fund, L.P. 100 49 392
-----------------------------------------------------------------------------------------------------------------
Olympus Growth Fund II, L.P. 9,900 4,841 38,728
-----------------------------------------------------------------------------------------------------------------
Xxxx'x Management Partners, Ltd. (Xxxx'x 7,000 7,900 63,200
Management Partners as Investment Manager and
Agent)
-----------------------------------------------------------------------------------------------------------------
MONY Life Insurance Company 3,250 3,000 24,000
-----------------------------------------------------------------------------------------------------------------
Equity-Linked Investors-II 3,500 12,000 96,000
-----------------------------------------------------------------------------------------------------------------
Private Equity Investors III, L.P. 3,500 12,000 96,000
-----------------------------------------------------------------------------------------------------------------
Xxxx X. XxXxxx 2,271,099 1,000 275,000
-----------------------------------------------------------------------------------------------------------------
Arbor Lake Club, Ltd. 7,000
-----------------------------------------------------------------------------------------------------------------
Total: 2,271,099 52,250 39,790 593,320
-----------------------------------------------------------------------------------------------------------------
EXHIBIT A
TO THE VOTING AGREEMENT
PLAN OF DISSOLUTION OF CANDLEWOOD HOTEL COMPANY, INC.
This Plan of Dissolution (the "Plan") is for the purpose of effecting
the complete liquidation and dissolution of Candlewood Hotel Company, Inc., a
Delaware corporation (the "Company"), in accordance with the Delaware General
Corporation Law ("DGCL") and Section 331 of the Internal Revenue Code of 1986,
as amended (the "Code").
1. ADOPTION OF THE PLAN. The board of directors of the Company (the
"Board") has adopted this Plan and called a meeting (the "Meeting") of
the Company's stockholders (the "Stockholders") to take action on the
Plan. The Stockholders include all holders of the Company's outstanding
Common Stock, par value $.01 per share (the "Common Stock"), the
Company's outstanding Series A Cumulative Convertible Preferred Stock,
par value $.01 per share (the "Series A Preferred"), and the Company's
Series B Cumulative Convertible Preferred Stock, par value $.01 per
share (the "Series B Preferred" and collectively with the Series A
Preferred, the "Preferred Stock"). If (i) Stockholders holding a
majority of the outstanding Common Stock, the outstanding Series A
Preferred, and the outstanding Series B Preferred voting together as a
single class pursuant to the Restated Certificate of Incorporation of
the Company, (ii) Stockholders holding 66?% of the outstanding Series A
Preferred, and (iii) Stockholders holding 66?% of the outstanding
Series B Preferred each vote for the adoption of this Plan at the
Meeting, then the Plan shall constitute the adopted Plan of the Company
as of the date of the Meeting, or such later date on which the
Stockholders may approve the Plan if the Meeting is adjourned to a
later date (the "Adoption Date"). The Plan, once adopted, will become
effective simultaneously with the occurrence of both of the following
events: (A) the closing of (i) the transactions contemplated by the
Asset Purchase and Sale Agreement, dated as of October 27, 2003, by and
among the Company, Candlewood Hotel Company LLC, a Delaware limited
liability company and Six Continents Hotels, Inc., a Delaware
corporation, as may be amended from time to time, (ii) the transaction
contemplated by the Purchase and Sale Agreement, dated as of October
27, 2003, by and among the Company and certain of its affiliates, JPD
Corporation, a Kansas corporation and Hospitality Properties Trust, a
Maryland real estate investment trust, as may be amended from time to
time, and (iii) the other transactions contemplated by the foregoing
agreements (the "Closing") and (B) the Certificate of Amendment of
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 and Series B Cumulative
Convertible Preferred Stock attached hereto as Exhibit A (the
"Certificate of Amendment") becoming effective.
2. INTERIM MATTERS. Notwithstanding anything to the contrary herein, the
Board may take no action prior to the Closing with respect to the Plan
without the approval of at least (i) one director who has been
designated by the holders of the outstanding Series A Preferred and
(ii) one director who has been designated by the holders of the
outstanding
Series B Preferred, in accordance with Section 2.1 of the Amended and
Restated Stockholders Agreement, dated as of July 10, 1998, by and
among the Company, Doubletree Corporation, a Delaware corporation, the
Xxxxxx X. Fix Family Partnership, L.P., Xxxx X. XxXxxx and the other
entities set forth on the signature pages thereto, as may be amended
from time to time (the "Stockholders Agreement").
3. CERTIFICATE OF DISSOLUTION. Promptly following the Closing, the
officers of the Company shall, at such time as the Board, in its
absolute discretion, deems necessary, appropriate or desirable, file
any certificates required by the Delaware governmental authorities, or
any other documents as may be required to effectuate the dissolution of
the Company, including filing with the Secretary of State of the State
of Delaware a certificate of dissolution (the "Certificate of
Dissolution") in accordance with the DGCL. The dissolution will be
effective (the "Effective Date") upon the filing of the Certificate of
Dissolution with the Secretary of State of the State of Delaware or
upon such later date as may be specified in the Certificate of
Dissolution. From and after the Effective Date, the Company will be
deemed to be completely dissolved, but will continue to exist under
Delaware law for a period of three years, or such longer period as
ordered by the Delaware Court of Chancery for the purposes of
prosecuting suits by or against the Company, paying, satisfying and
discharging any existing debts or obligations, collecting and
distributing its assets, and doing all other acts required to liquidate
and wind up the Company's business affairs. The members of the Board in
office on the Effective Date shall have all powers provided to them
under the DGCL and other applicable law.
4. CESSATION OF BUSINESS ACTIVITIES. After the Effective Date, the Company
shall not engage in any business activities except to the extent
necessary to preserve the value of its assets, wind up its business and
affairs, and distribute its assets in accordance with this Plan and the
DGCL. Effective upon the Closing, the number of directors on the Board
of the company shall be five (5), consisting of two (2) directors
designated by holders of a majority of the outstanding Series A
Preferred, one (1) director designated by holders of a majority of the
outstanding Series B Preferred, and two (2) directors, one of whom
shall be an independent director, designated by certain holders of the
Company's Common stock in accordance with Section 2.1 of the
Stockholders Agreement (such persons collectively, the "Continuing
Directors"), each of whom shall serve as a director of the Board until
his successor is duly elected by the Stockholders having the right to
designate such successor and qualified or until such person's death,
retirement, resignation or removal. The Continuing Directors in office
from and after the Closing and, at the pleasure of the Board, the
officers of the Company, shall continue in office solely for these
purposes and as otherwise provided in this Plan.
5. LIQUIDATION OF ASSETS. From and after the Effective Date, the Company
shall determine whether and when to sell, exchange, transfer, lease,
license or otherwise dispose of all of its property and assets,
including the Company's intangible assets, in one or more transactions
upon such terms and conditions as the Board, in its absolute
discretion, deems expedient and in the best interests of the Company
and the Stockholders. The Company will not be required to obtain
appraisals or other third party opinions as to the value of its
properties and assets in connection with the liquidation. As part of
the liquidation of its property and assets, the Company shall collect,
or make
provision for the collection of all accounts receivable, debts and
claims owing to the company, including all recoveries under any pending
litigation to which the Company is a party. In connection with and for
the purpose of implementing and assuring completion of this Plan, the
Company may, in the absolute discretion of the Board, pay any
brokerage, agency, professional and other fees and expenses of persons
rendering services to the Company in connection with the collection,
sale, exchange or other disposition of the Company's property and
assets and the implementation of this Plan.
6. PAYMENT OF DEBTS. Prior to making any distributions to the
Stockholders, the Company shall pay, or as determined by the Board,
make reasonable provision to pay, all claims and obligations of the
Company, including all contingent, conditional or unmatured claims
known to the Company. Such claims shall be paid or provided for in full
if there are sufficient assets. If there are insufficient assets, such
claims and obligations shall be paid or provided for according to their
priority and, among claims of equal priority, ratably to the extent of
assets legally available therefore. If and to the extent deemed
necessary, appropriate or desirable by the Board, in its absolute
discretion, the company may establish and set aside a reasonable amount
of cash and/or property (the "Contingency Reserve") to satisfy claims
against the Company, including, without limitation, unknown events, tax
obligations, claims that are the subject of pending litigation, and all
expenses of the sale of the Company's property and assets, of the
collection and defense of the Company's property and assets, and of the
liquidation and dissolution provided for in this Plan. The Board may,
in its discretion, increase or decrease the amount of the Contingency
Reserve at any time and shall place or cause to be placed such funds in
an account of the Company as the Board has determined to be maintained
as the Contingency Reserve.
7. DISTRIBUTIONS TO STOCKHOLDERS. Following the payment or the provision
for the payment of the Company's claims and obligations as provided
above, and by law, the Company shall distribute all remaining assets,
including all available cash, including the cash proceeds of any sale,
exchange or disposition to the Stockholders as provided in the
Certificate of Amendment. If the Board determines to follow the
procedures described in Section 280 of the DGCL, then the additional
steps set forth below shall, to the extent necessary or appropriate be
taken:
- The giving of notice of the dissolution to all persons having
a claim against the Company and any rejection of any such
claims in accordance with Section 280 of the DGCL;
- The offering of security to any claimant on a contract whose
claim is contingent, conditional or unmatured in an amount the
Company determines sufficient to provide compensation to the
claimant if the claim matures, and the petitioning of the
Delaware Court of Chancery to determine the amount and form of
security sufficient to provide compensation to any claimant
who has rejected such offer in accordance with Section 280 of
the DGCL;
- The petitioning of the Delaware Court of Chancery to determine
the amount and form of security which would be reasonably
likely to be sufficient to provide
compensation for (1) claims that are subject of pending
litigation against the Company; and (2) claims that have not
been made known to the Company or that have not arisen, but
are likely to arise or become known within five years after
the date of dissolution (or longer in the discretion of the
Delaware Court of Chancery), each in accordance with Section
280 of the DGCL;
- The payment, or the making of adequate provision for payment,
of all claims made against the Company and not rejected in
accordance with Section 280 of the DGCL;
- The posting of all security offered and not rejected and all
security ordered by the Delaware Court of Chancery in
accordance with Section 280 of the DGCL; and
- The payment, or the making of adequate provision for payment,
of all other claims that are mature, known and contested or
that have been finally determined to be owing by the Company.
Notwithstanding the foregoing, the Company shall not be required to follow the
procedures described in Section 280 of the DGCL, and the Board and the officers
of the Company are hereby authorized, without further stockholder action, to
proceed with the dissolution, liquidation and termination of existence of the
Company in accordance with any applicable provision of the DGCL, including,
without limitation, Section 281(b) thereof, including the adoption of a plan of
distribution as contemplated by such section.
8. NOTICE OF LIQUIDATION. As soon as practicable after the Effective Date,
the Board may direct the officers to mail notice in accordance with the
DGCL to all its claimants at this Plan has been approved by the Board
and the Company's stockholders.
9. POWERS OF BOARD AND OFFICERS. Notwithstanding authorization or consent
to this Plan and the transactions contemplated hereby by the
Stockholders, following the Closing, the Board may interpret any of the
provisions of this Plan, modify, amend or abandon this Plan and the
transactions contemplated hereby without further action by the
Stockholders, to the extent permitted by the DGCL. The Board may also
make, execute and deliver such other agreements, conveyances,
assignments, transfers, certificates and other documents and take such
other action as the Board and the officers of the Company deem
necessary or desirable in order to carry out the provisions of this
Plan and effect the complete liquidation and dissolution of the Company
in accordance with the Code, the Internal Revenue Service and the DGCL
and any rules and regulations of the Securities and Exchange Commission
or any state securities commission, including, without limitation, any
instruments of dissolution or other documents, and withdrawing any
qualification to do business in any state in which the Company is so
qualified, as well as the preparation and filing of any federal or
state tax returns. Prior to the filing of the Certificate of
Dissolution, the Board shall have full authority to abandon and revoke
the dissolution as the Board deems appropriate without further
stockholder action.
10. CANCELLATION OF STOCK. The distributions to the Stockholders pursuant
to Sections VI and XI hereof shall be in respect of all interests
formerly represented by the
outstanding Common Stock and Preferred Stock of the Company. As a
condition to receipt of any distribution to the Stockholders, the
Board, in its absolute discretion, may require the Stockholders to (i)
surrender their certificates evidencing the Common Stock and Preferred
Stock to the Company or its agent for recording of such distributions
thereon or (ii) furnish the Company with evidence satisfactory to the
Board of the loss, theft or destruction of their certificates
evidencing the Common Stock and Preferred Stock, together with such
surety bond or other security or indemnity as may be required by and
satisfactory to the Board. The Company will finally close its stock
transfer books and discontinue recording transfers of Common Stock and
Preferred Stock on the date on which the Company files a Certificate of
Dissolution with the Secretary of State of the State of Delaware under
the DGCL (the "Final Record Date"), and thereafter certificates
representing Common Stock and Preferred Stock will not be assignable or
transferable on the books of the Company except by will, intestate
succession, or operation of law. If any distribution to a Stockholder
cannot be made, whether because the Stockholder cannot be located, has
not surrendered its certificates evidencing the Common Stock and
Preferred Stock as required hereunder or for any other reason, the
distribution to which such Stockholder is entitled (unless transferred
to the Trust) shall be transferred, at such time as the final
liquidating distribution is made by the Company, to the official of
such state or other jurisdiction authorized by applicable law to
receive the proceeds of such distribution. The proceeds of such
distribution shall thereafter be held solely for the benefit of and for
ultimate distribution to such Stockholder as the sole equitable owner
thereof and shall be treated as abandoned property and shall escheat to
the applicable state or other jurisdiction in accordance with
applicable law. In no event shall the proceeds of any such distribution
revert to or become the property of the Company.
11. LIQUIDATING TRUST. From and after the Closing, if deemed necessary,
appropriate or desirable by the Board, in its absolute discretion, in
furtherance of the liquidation and distribution of the Company's assets
to the Stockholders, as a final liquidating distribution or from time
to time, the Company shall transfer to one or more liquidating
trustees, for the benefit of the Stockholders (the "Trustees"), under a
liquidating trust (the "Trust"), any assets of the Company which are
(i) not reasonably susceptible to distribution to the Stockholders,
including without limitation non-cash assets and assets held on behalf
of the Stockholders (a) who cannot be located or who do not tender
their certificates evidencing the Common Stock and Preferred Stock to
the Company or its agent as herein above required or (b) to whom
distributions may not be made based upon restrictions under contract or
law, including, without limitation, restrictions of the federal
securities laws and regulations promulgated thereunder or (ii) held as
the Contingency Reserve. If assets are transferred to the Trust, each
Stockholder on the Final Record Date shall receive an interest (an
"Interest") in the Trust in accordance with the allocation set forth in
Section VII above. All distributions from the Trust will be made in
accordance with the Interests. The Interests shall not be transferable
except by operation of law or upon death of the recipient. The Board is
hereby authorized to appoint one or more individuals, corporations,
partnerships or other persons, or any combination thereof, including,
without limitation, any one or more officers, directors, employees,
agents or representatives of the Company, to act as the initial Trustee
or Trustees for the benefit of the Stockholders and to receive any
assets of the Company. Any Trustees appointed as provided in the
preceding sentence shall succeed to all right, title and interest of
the
Company of any kind and character with respect to such transferred
assets and, to the extent of the assets so transferred and solely in
their capacity as Trustees, shall assume all of the liabilities and
obligations of the Company, including, without limitation, any
unsatisfied claims and unascertained or contingent liabilities.
Further, any conveyance of assets to the Trustees shall be deemed to be
a distribution of property and assets by the Company to the
Stockholders. Any such conveyance to the Trustees shall be in trust for
the Stockholders. The Company, subject to this Section and as
authorized by the Board, in its absolute discretion, may enter into a
liquidating trust agreement with the Trustees, on such terms and
conditions as the Board, in its absolute discretion, may deem
necessary, appropriate or desirable. Adoption of this Plan as set forth
in Section I above shall constitute the approval of the Stockholders of
any such appointment, but only to the extent that such appointment is
made following the Effective Date, and any such liquidating trust
agreement as their act and as a part hereof as if herein written.
12. COMPENSATION. From and after the Closing, in connection with and for
the purpose of implementing and assuring completion of this Plan, the
Company may, in the absolute discretion of the Board, pay to the
Company's officers, directors, employees, agents and representatives,
or any of them, compensation or additional compensation above their
regular compensation, in money or other property, in recognition of the
extraordinary efforts they, or any of them, will be required to
undertake, or actually undertake, in connection with the implementation
of this Plan. Adoption of this Plan as set forth in Section I above
shall constitute the approval of the Stockholders of the payment of any
such compensation, subject to Section II of this Plan.
13. EMPLOYEES AND CONSULTANTS. For the purposes of effecting the
dissolution of the Company, the Company shall hire or retain, at the
discretion of the Board of Directors, such employees and consultants as
the Board of Directors deems necessary or desirable to supervise the
dissolution.
14. INDEMNIFICATION. The Company shall indemnify its officers, directors,
employees, agents and representatives in accordance with its
certificate of incorporation, bylaws and any contractual arrangements,
for actions taken in connection with this Plan and the winding up of
the affairs of the Company. The Company's obligation to indemnify such
persons may also be satisfied out of the assets of the Trust. The Trust
will similarly be authorized to indemnify the Trustees and any
employees, agents or representatives of the Trust for actions taken in
connection with the operations of the Trust. Any claims arising in
respect of such indemnification will be satisfied out of the assets of
the Trust. The Board and the Trustees, in their absolute discretion,
are authorized to obtain and maintain insurance as may be necessary or
appropriate to cover the Company's obligations hereunder.
15. FURTHER AUTHORITY. Subject to Section II of this Plan, the Board is
hereby authorized, without further action by the Stockholders, to do
and perform or cause the officers of the Company, subject to approval
of the Board, to do and perform, any and all acts, and to make,
execute, deliver or adopt any and all agreements, resolutions,
conveyances, certificates and other documents of every kind which are
deemed necessary, appropriate or desirable, in the absolute discretion
of the Board, to implement
this Plan and the transactions contemplated hereby, including, without
limiting the foregoing, all filings or acts required by any state or
federal law or regulation to wind up its affairs.
16. DELISTING OF COMMON STOCK. At any time, the Board may, if the Board
deems such action to be in the best interests of the Company and the
Stockholders, cause the shares of Common Stock of the Company to be
delisted from any securities exchange on which they are traded.
17. ABSENCE OF APPRAISAL RIGHTS. Under Delaware law, the Stockholders are
not entitled to appraisal rights for their shares of capital stock with
the transactions contemplated by the Plan.
18. STOCKHOLDER CONSENT TO SALE OF ASSETS. Subject to Section II of this
Plan, adoption of this Plan as set forth in Section I above, shall
constitute the approval of the Stockholders of the sale, exchange or
other disposition in liquidation of all of the property and assets of
the Company, whether such sale, exchange or other disposition occurs in
one transaction or a series of transactions, and shall constitute
ratification of all contracts for sale, exchange or other disposition
which are conditioned on adoption of this Plan.
19. EXPENSES OF DISSOLUTION. In connection with and for the purposes of
implementing and assuring completion of this Plan, the Company may, in
the absolute discretion of the Board, pay any brokerage, agency,
professional and other fees and expenses of persons rendering services
to the Company in connection with the collection, sale, exchange or
other disposition of the Company's property and assets and the
implementation of this Plan, subject to Section II of this Plan.
20. MERGER OF SUBSIDIARIES. At any time, the Board may, if the Board deems
such action to be in the best interests of the Company and the
Stockholders, cause any or all of the subsidiaries of the Company to be
merged into or with the Company.
EXHIBIT A
TO THE PLAN OF DISSOLUTION
Certificate of Amendment of 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 and Series B
Cumulative Convertible Preferred Stock
Candlewood Hotel Company, Inc., a corporation duly organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY THAT:
1. The Board of Directors of the Corporation, acting pursuant to the
authority of Section 141(f) of the General Corporation Law of the State of
Delaware, adopted a resolution setting forth a proposed amendment of the
Certificate of Designations, Preferences and Relative, Participating, Optional
and Other Special Rights of the Preferred Stock and Qualifications, Limitations
and Restrictions Thereof of the Series A Cumulative Convertible Preferred Stock
of the Corporation (the "Series A Certificate of Designations") and the Series B
Cumulative Convertible Preferred Stock of the Corporation (the "Series B
Certificate of Designations"), which amendment shall be filed with the Secretary
of State of the State of Delaware immediately preceding the closing of the
transactions set forth in the resolution. The resolution setting forth the
proposed amendment is as follows:
NOW, THEREFORE, BE IT RESOLVED, that upon and concurrent with
the closing of the transactions contemplated by (i) that certain Purchase and
Sale Agreement by and among the Corporation and certain of its affiliates, JPD
Corporation, a Kansas corporation, and Hospitality Properties Trust ("HPT"), a
Maryland real estate investment trust, and by (ii) that certain Asset Purchase
and Sale Agreement by and among the Corporation and certain of its affiliates
and Six Continents Hotels, Inc., a Delaware corporation (together, the "Proposed
Transactions"), the Series A Certificate of Designations and Series B
Certificate of Designations, respectively, will be amended as follows:
I. AMENDMENT TO SERIES A CERTIFICATE OF DESIGNATIONS
(A) The Series A Certificate of Designations is hereby
amended by striking out the entirety of Section (ii) thereof and substituting in
lieu of said Section the following:
"(ii) Dividends. The Series A Preferred Stock
shall not be entitled to receive any dividends, including any
dividends that have accrued and remain unpaid."
(B) The Series A Certificate of Designations is hereby
amended by striking out the entirety of Section (iii) thereof and substituting
in lieu of said Section the following:
"(iii) Liquidation. In the event of any
liquidation, dissolution or winding up of the affairs of the
Corporation (any and all such events, a "Liquidation"),
whether voluntary or involuntary, the holders of shares of
Series A Preferred Stock shall be entitled to those amounts as
described in Section (vii) ("Distributions Upon the Sale of
the Corporation's Assets") hereof. Except as provided in this
paragraph, holders of Series A Preferred Stock shall not be
entitled to any distribution in the event of the Liquidation
of the Corporation. The closing of the Proposed Transactions
shall be considered a Liquidation within the meaning of this
paragraph."
(C) The Series A Certificate of Designations is hereby
amended by striking out the entirety of Section (iv) thereof and substituting in
lieu of said Section the following:
"(iv) The Series A Preferred Stock shall not be
subject to redemption."
(D) The Series A Certificate of Designations is hereby
amended by striking out the entirety of Section (vi)(b) thereof and substituting
in lieu of said Section the following:
"(b) Reserved."
(E) The Series A Certificate of Designations is hereby
amended by striking out the entirety of Section (vi)(h) thereof and substituting
in lieu of said Section the following:
"(h) Reserved."
(F) The Series A Certificate of Designations is hereby
amended by inserting the following new Section (vii):
"(vii) Distributions Upon a Sale of the
Corporation's Assets. (a) Distribution to Series A Holders.
The holders of the Series A Preferred Stock shall be entitled
to receive a payment, out of the assets of the Corporation,
pro-rata, pari passu as if members of a single class of
securities with the holders of the Series B Preferred Stock, a
total of $25,000,000 in proceeds from the sale of the
Corporation or any assets of the Corporation after payment or
provision for all obligations or liabilities of the
Corporation ("Net
Liquidation Proceeds") before any payment shall be made or any
assets distributed to the holders of Common Stock.
(b) Distribution to Common Stock Holders. After
the payment in full to the holders of Series A Preferred Stock
and the holders of Series B Preferred Stock of the $25,000,000
specified in Section vii(a) above, the holders of the
Corporation's Common Stock shall receive, on a pro-rata basis
among all holders of the Corporation's Common Stock, a total
of $500,000 in Net Liquidation Proceeds.
(c) Distribution to Series A Holders and Common
Stock Holders. After the payment in full of Net Liquidation
Proceeds as described in Sections vii(a) and vii(b), the
holders of the Series A Preferred Stock shall be entitled to
receive Ninety Percent (90%) of the remaining Net Liquidation
Proceeds of the Corporation, pro-rata, pari passu as if
members of a single class of securities with the holders of
the Series B Preferred Stock, and the holders of the
Corporation's Common Stock shall be entitled to receive Ten
Percent (10%) of the remaining Net Liquidation Proceeds of the
Corporation, on a pro-rata basis (without giving effect to any
conversion provision).
(d) Payment of Net Liquidation Proceeds. The
Corporation may distribute Net Liquidation Proceeds in one
payment or multiple payments over time as the obligations and
liabilities of the Corporation are paid or provided for.
(e) Sole Payments. The foregoing distributions
are the only amounts that shall be paid to the holders of the
Series A Preferred Stock with respect to such stock. No other
amounts, including without limitation accrued dividends, shall
be paid to such holders with respect to such stock."
II. AMENDMENT TO SERIES B CERTIFICATE OF DESIGNATIONS
(A) The Series B Certificate of Designations is hereby
amended by striking out the entirety of Section (ii) thereof and substituting in
lieu of said Section the following:
"(ii) Dividends. The Series B Preferred Stock
shall not be entitled to receive any dividends, including any
dividends that have accrued and remain unpaid."
(B) The Series B Certificate of Designations is hereby
amended by striking out the entirety of Section (iii) thereof and substituting
in lieu of said Section the following:
"(iii) Liquidation. In the event of any
liquidation, dissolution or winding up of the affairs of the
Corporation (any and all such events, a "Liquidation"),
whether voluntary or involuntary, the holders of shares of
Series B Preferred Stock shall be entitled to those amounts as
described in Section (vii) ("Distributions Upon the Sale of
the Corporation's Assets") hereof. Except as provided in this
paragraph, holders of Series B Preferred Stock shall not be
entitled to any distribution in the event of the Liquidation
of the Corporation. The
closing of the Proposed Transactions shall be considered a
Liquidation within the meaning of this paragraph."
(C) The Series B Certificate of Designations is hereby
amended by striking out the entirety of Section (iv) thereof and substituting in
lieu of said Section the following:
"(iv) The Series B Preferred Stock shall not be
subject to redemption."
(D) The Series B Certificate of Designations is hereby
amended by striking out the entirety of Section (vi)(b) thereof and substituting
in lieu of said Section the following:
"(b) Reserved."
(E) The Series B Certificate of Designations is hereby
amended by striking out the entirety of Section (vi)(h) thereof and substituting
in lieu of said Section the following:
"(h) Reserved."
(F) The Series B Certificate of Designations is hereby
amended by inserting the following new Section (vii):
"(vii) Distributions Upon a Sale of the
Corporation's Assets. (a) Distribution to Series B Holders.
The holders of the Series B Preferred Stock shall be entitled
to receive a payment, out of the assets of the Corporation,
pro-rata, pari passu as if members of a single class of
securities with the holders of the Series A Preferred Stock, a
total of $25,000,000 in proceeds from the sale of the
Corporation or any assets of the Corporation after payment or
provision for all obligations or liabilities of the
Corporation ("Net
Liquidation Proceeds") before any payment shall be made or any
assets distributed to the holders of Common Stock.
(b) Distribution to Common Stock Holders. After
the payment in full to the holders of Series B Preferred Stock
and the holders of Series A Preferred Stock of the $25,000,000
specified in Section vii(a) above, the holders of the
Corporation's Common Stock shall receive, on a pro-rata basis
among all holders of the Corporation's Common Stock, a total
of $500,000 in Net Liquidation Proceeds.
(c) Distribution to Series B Holders and Common
Stock Holders. After the payment in full of Net Liquidation
Proceeds as described in Sections vii(a) and vii(b), the
holders of the Series B Preferred Stock shall be entitled to
receive Ninety Percent (90%) of the remaining Net Liquidation
Proceeds of the Corporation, pro-rata, pari passu as if
members of a single class of securities with the holders of
the Series A Preferred Stock, and the holders of the
Corporation's Common Stock shall be entitled to receive Ten
Percent (10%) of the remaining Net Liquidation Proceeds of the
Corporation, on a pro-rata basis (without giving effect to any
conversion provision).
(d) Payment of Net Liquidation Proceeds. The
Corporation may distribute Net Liquidation Proceeds in one
payment or multiple payments over time as the obligations and
liabilities of the Corporation are paid or provided for.
(e) Sole Payments. The foregoing distributions
are the only amounts that shall be paid to the holders of the
Series B Preferred Stock with respect to such stock. No other
amounts, including without limitation accrued dividends, shall
be paid to such holders with respect to such stock. "
2. Paragraphs I. (A) through (F) and II. (A) through (F) of the
foregoing amendment will not become effective and shall have no force and effect
unless and until the Proposed Transactions have closed in accordance with their
respective terms.
3. The holders of (i) a majority of the voting power of the
outstanding capital stock of the Corporation, (ii) a majority of the outstanding
Common Stock of the Corporation, the outstanding Series A Cumulative Convertible
Preferred Stock, par value $0.01 per share, of the Corporation (the "Series A
Preferred"), and the outstanding Series B Cumulative Convertible Preferred
Stock, par value $0.01 per share, of the Corporation (the "Series B Preferred")
voting together as a single class pursuant to the Restated Certificate of
Incorporation of the Corporation, (iii) 66-2/3% of the outstanding shares of the
Series A Preferred, and (iv) 66-2/3% of the outstanding shares of the Series B
Preferred, entitled to vote have approved the foregoing amendment at a Special
Meeting of the stockholders of the Corporation in accordance with the Restated
Certificate of Incorporation, the Amended and Restated Bylaws of the
Corporation, and the provisions of Section 242 of the General Corporation Law of
the State of Delaware.
4. The foregoing amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Candlewood Hotel Company, Inc. has caused
this Certificate to be executed by __________, its __________, on this ____ day
of ________, 2003.
CANDLEWOOD HOTEL COMPANY, INC.,
A DELAWARE CORPORATION
By:_______________________________
Name:
Title:
EXHIBIT B
TO THE VOTING AGREEMENT
CERTIFICATE OF AMENDMENT OF
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
AND
SERIES B CUMULATIVE CONVERTIBLE
PREFERRED STOCK
OF
CANDLEWOOD HOTEL COMPANY, INC.
Candlewood Hotel Company, Inc., a corporation duly organized
and existing under the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY THAT:
1. The Board of Directors of the Corporation, acting pursuant to the
authority of Section 141(f) of the General Corporation Law of the State of
Delaware, adopted a resolution setting forth a proposed amendment of the
Certificate of Designations, Preferences and Relative, Participating, Optional
and Other Special Rights of the Preferred Stock and Qualifications, Limitations
and Restrictions Thereof of the Series A Cumulative Convertible Preferred Stock
of the Corporation (the "Series A Certificate of Designations") and the Series B
Cumulative Convertible Preferred Stock of the Corporation (the "Series B
Certificate of Designations"), which amendment shall be filed with the Secretary
of State of the State of Delaware immediately
preceding the closing of the transactions set forth in the resolution. The
resolution setting forth the proposed amendment is as follows:
NOW, THEREFORE, BE IT RESOLVED, that upon and concurrent with
the closing of the transactions contemplated by (i) that certain Purchase and
Sale Agreement by and among the Corporation and certain of its affiliates, JPD
Corporation, a Kansas corporation, and Hospitality Properties Trust ("HPT"), a
Maryland real estate investment trust, and by (ii) that certain Asset Purchase
and Sale Agreement by and among the Corporation and certain of its affiliates
and Six Continents Hotels, Inc., a Delaware corporation (together, the "Proposed
Transactions"), the Series A Certificate of Designations and Series B
Certificate of Designations, respectively, will be amended as follows:
I. AMENDMENT TO SERIES A CERTIFICATE OF DESIGNATIONS
(A) The Series A Certificate of Designations is hereby
amended by striking out the entirety of Section (ii) thereof and substituting in
lieu of said Section the following:
"(ii) Dividends. The Series A Preferred Stock
shall not be entitled to receive any dividends, including any
dividends that have accrued and remain unpaid."
(B) The Series A Certificate of Designations is hereby
amended by striking out the entirety of Section (iii) thereof and substituting
in lieu of said Section the following:
"(iii) Liquidation. In the event of any
liquidation, dissolution or winding up of the affairs of the
Corporation (any and all such events, a "Liquidation"),
whether voluntary or involuntary, the holders of shares of
Series A Preferred
Stock shall be entitled to those amounts as described in
Section (vii) ("Distributions Upon the Sale of the
Corporation's Assets") hereof. Except as provided in this
paragraph, holders of Series A Preferred Stock shall not be
entitled to any distribution in the event of the Liquidation
of the Corporation. The closing of the Proposed Transactions
shall be considered a Liquidation within the meaning of this
paragraph."
(C) The Series A Certificate of Designations is hereby
amended by striking out the entirety of Section (iv) thereof and substituting in
lieu of said Section the following:
"(iv) The Series A Preferred Stock shall not be
subject to redemption."
(D) The Series A Certificate of Designations is hereby
amended by striking out the entirety of Section (vi)(b) thereof and substituting
in lieu of said Section the following:
"(b) Reserved."
(E) The Series A Certificate of Designations is hereby
amended by striking out the entirety of Section (vi)(h) thereof and substituting
in lieu of said Section the following:
"(h) Reserved."
(F) The Series A Certificate of Designations is hereby
amended by inserting the following new Section (vii):
"(vii) Distributions Upon a Sale of the
Corporation's Assets. (a) Distribution to Series A Holders.
The holders of the Series A Preferred Stock shall be entitled
to receive a payment, out of the assets of the Corporation,
pro-rata, pari passu as if members of a single class of
securities with the holders of the Series B
Preferred Stock, a total of $25,000,000 in proceeds from the
sale of the Corporation or any assets of the Corporation after
payment or provision for all obligations or liabilities of the
Corporation ("Net Liquidation Proceeds") before any payment
shall be made or any assets distributed to the holders of
Common Stock.
(b) Distribution to Common Stock Holders. After
the payment in full to the holders of Series A Preferred Stock
and the holders of Series B Preferred Stock of the $25,000,000
specified in Section vii(a) above, the holders of the
Corporation's Common Stock shall receive, on a pro-rata basis
among all holders of the Corporation's Common Stock, a total
of $500,000 in Net Liquidation Proceeds.
(c) Distribution to Series A Holders and Common
Stock Holders. After the payment in full of Net Liquidation
Proceeds as described in Sections vii(a) and vii(b), the
holders of the Series A Preferred Stock shall be entitled to
receive Ninety Percent (90%) of the remaining Net Liquidation
Proceeds of the Corporation, pro-rata, pari passu as if
members of a single class of securities with the holders of
the Series B Preferred Stock, and the holders of the
Corporation's Common Stock shall be entitled to receive Ten
Percent (10%) of the remaining Net Liquidation Proceeds of the
Corporation, on a pro-rata basis (without giving effect to any
conversion provision).
(d) Payment of Net Liquidation Proceeds. The
Corporation may distribute Net Liquidation Proceeds in one
payment or multiple payments over time as the obligations and
liabilities of the Corporation are paid or provided for.
(e) Sole Payments. The foregoing distributions
are the only amounts that shall be paid to the holders of the
Series A Preferred Stock with respect to such stock. No other
amounts, including without limitation accrued dividends, shall
be paid to such holders with respect to such stock."
II. AMENDMENT TO SERIES B CERTIFICATE OF DESIGNATIONS
(A) The Series B Certificate of Designations is hereby
amended by striking out the entirety of Section (ii) thereof and substituting in
lieu of said Section the following:
"(ii) Dividends. The Series B Preferred Stock
shall not be entitled to receive any dividends, including any
dividends that have accrued and remain unpaid."
(B) The Series B Certificate of Designations is hereby
amended by striking out the entirety of Section (iii) thereof and substituting
in lieu of said Section the following:
"(iii) Liquidation. In the event of any
liquidation, dissolution or winding up of the affairs of the
Corporation (any and all such events, a "Liquidation"),
whether voluntary or involuntary, the holders of shares of
Series B Preferred Stock shall be entitled to those amounts as
described in Section (vii) ("Distributions Upon the Sale of
the Corporation's Assets") hereof. Except as provided in this
paragraph, holders of Series B Preferred Stock shall not be
entitled to any distribution in the event of the Liquidation
of the Corporation. The closing of the Proposed Transactions
shall be considered a Liquidation within the meaning of this
paragraph."
(C) The Series B Certificate of Designations is hereby
amended by striking out the entirety of Section (iv) thereof and substituting in
lieu of said Section the following:
"(iv) The Series B Preferred Stock shall not be
subject to redemption."
(D) The Series B Certificate of Designations is hereby
amended by striking out the entirety of Section (vi)(b) thereof and substituting
in lieu of said Section the following:
"(b) Reserved."
(E) The Series B Certificate of Designations is hereby
amended by striking out the entirety of Section (vi)(h) thereof and substituting
in lieu of said Section the following:
"(h) Reserved."
(F) The Series B Certificate of Designations is hereby
amended by inserting the following new Section (vii):
"(vii) Distributions Upon a Sale of the
Corporation's Assets. (a) Distribution to Series B Holders.
The holders of the Series B Preferred Stock shall be entitled
to receive a payment, out of the assets of the Corporation,
pro-rata, pari passu as if members of a single class of
securities with the holders of the Series A Preferred Stock, a
total of $25,000,000 in proceeds from the sale of the
Corporation or any assets of the Corporation after payment or
provision for all obligations or liabilities of the
Corporation ("Net
Liquidation Proceeds") before any payment shall be made or any
assets distributed to the holders of Common Stock.
(b) Distribution to Common Stock Holders. After
the payment in full to the holders of Series B Preferred Stock
and the holders of Series A Preferred Stock of the $25,000,000
specified in Section vii(a) above, the holders of the
Corporation's Common Stock shall receive, on a pro-rata basis
among all holders of the Corporation's Common Stock, a total
of $500,000 in Net Liquidation Proceeds.
(c) Distribution to Series B Holders and Common
Stock Holders. After the payment in full of Net Liquidation
Proceeds as described in Sections vii(a) and vii(b), the
holders of the Series B Preferred Stock shall be entitled to
receive Ninety Percent (90%) of the remaining Net Liquidation
Proceeds of the Corporation, pro-rata, pari passu as if
members of a single class of securities with the holders of
the Series A Preferred Stock, and the holders of the
Corporation's Common Stock shall be entitled to receive Ten
Percent (10%) of the remaining Net Liquidation Proceeds of the
Corporation, on a pro-rata basis (without giving effect to any
conversion provision).
(d) Payment of Net Liquidation Proceeds. The
Corporation may distribute Net Liquidation Proceeds in one
payment or multiple payments over time as the obligations and
liabilities of the Corporation are paid or provided for.
(e) Sole Payments. The foregoing distributions
are the only amounts that shall be paid to the holders of the
Series B Preferred Stock with respect to such stock. No other
amounts, including without limitation accrued dividends, shall
be paid to such holders with respect to such stock. "
2. Paragraphs I. (A) through (F) and II. (A) through (F) of the
foregoing amendment will not become effective and shall have no force and effect
unless and until the Proposed Transactions have closed in accordance with their
respective terms.
3. The holders of (i) a majority of the voting power of the
outstanding capital stock of the Corporation, (ii) a majority of the outstanding
Common Stock of the Corporation, the outstanding Series A Cumulative Convertible
Preferred Stock, par value $0.01 per share, of the Corporation (the "Series A
Preferred"), and the outstanding Series B Cumulative Convertible Preferred
Stock, par value $0.01 per share, of the Corporation (the "Series B Preferred")
voting together as a single class pursuant to the Restated Certificate of
Incorporation of the Corporation, (iii) 66-2/3% of the outstanding shares of the
Series A Preferred, and (iv) 66-2/3% of the outstanding shares of the Series B
Preferred, entitled to vote have approved the foregoing amendment at a Special
Meeting of the stockholders of the Corporation in accordance with the Restated
Certificate of Incorporation, the Amended and Restated Bylaws of the
Corporation, and the provisions of Section 242 of the General Corporation Law of
the State of Delaware.
4. The foregoing amendment was duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Candlewood Hotel Company, Inc. has caused
this Certificate to be executed by __________, its __________, on this ____ day
of ________, 2003.
CANDLEWOOD HOTEL COMPANY, INC.,
A DELAWARE CORPORATION
By:_______________________________
Name:
Title:
