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 Xxxxxx X. Fix Family
Partnership, L.P., a Kansas limited partnership (the "Fix Partnership"), and
Xxxx X. XxXxxx ("XxXxxx"), on behalf of himself and as representative of the
Alexander Xxxx XxXxxx Trust dated March 14, 1995 and the Xxxxxxxxxxx Xxxxx
XxXxxx 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;
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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;
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 1
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.
"XxXxxx/Fix Holders" means XxXxxx, 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.
"XxXxxx/Fix Shares" means the shares of Common Stock owned of record or
beneficially by XxXxxx, the Trusts and the Fix Partnership on the Effective
Date.
"XxXxxx Holders" means XxXxxx and the Trusts (so long as each is a
Holder) and each Permitted Transferee of XxXxxx, other than the Company, who
becomes a Holder.
"XxXxxx Shares" means the shares of Common Stock owned of record or
beneficially by XxXxxx and the Trusts on the Effective Date.
"Director" means a director of the Company.
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"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
XxXxxx Shares and the Fix Partnership Shares were issued to Doubletree, XxXxxx,
the Trusts and the Fix Partnership.
"Fix Partnership Holders" means the Fix Partnership (so long as it is a
Holder) and each Permitted Transferee of the Fix Partnership, other than 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
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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.
"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) Xxxxx 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.
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"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 XxXxxx 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 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 2
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 XxXxxx/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 XxXxxx/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.
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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 XxXxxx/Fix Holders, the Series A Purchaser Group, the Series B
Purchaser Group or the Doubletree Holders that an individual designated by them
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
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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.
2.4 Agent for Affiliated Holders. If a portion or all of the Subject
Shares held by Doubletree, XxXxxx, 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, XxXxxx, 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, XxXxxx 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.
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2.5 Irrevocable Proxy. The Fix Partnership Holders and the Trusts
hereby appoint XxXxxx as its and their proxy to exercise in XxXxxx'x 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 XxXxxx 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 Xxxxxx X. Fix all such rights shall automatically vest in XxXxxx 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 Xxxx XxXxxx.
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
XxXxxx/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
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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 3
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 4
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 provisions of this
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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.
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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 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/ Xxxx XxXxxx
-------------------
Name: Xxxx X. XxXxxx
Title: Chief Executive Officer
DOUBLETREE CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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XXXXXX X. FIX FAMILY
PARTNERSHIP, L.P.
By: /s/ Xxxxxx X. Fix
---------------------
Name: Xxxxxx X. Fix
Title: General Partner
/s/ Xxxxxx X. Fix
-----------------
Xxxxxx X. Fix
XXXX X. XxXXXX, for himself and on
behalf of the XXXXXXXXX XxXXXX
TRUST DATED MARCH 14, 1995 and the
XXXXXXXXXXX XXXXX XxXXXX TRUST
DATED MARCH 14, 1995
/s/ Xxxx X. XxXxxx
------------------
Name: Xxxx X. XxXxxx
OLYMPUS GROWTH FUND II, L.P.
By: OGP II, L.P., its General Partner
By: RSM, L.L.C., its General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
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OLYMPUS EXECUTIVE FUND, L.P.
By: OEF, L.P., its General Partner
By: RSM, L.L.C., its General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, AS TRUSTEE OF THE
COMMINGLED PENSION TRUST FUND
(MULTI-MARKET SPECIAL INVESTMENT
FUND II) OF XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, AS TRUSTEE OF THE
MULTI-MARKET SPECIAL INVESTMENT
TRUST FUND OF XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
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XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, AS INVESTMENT
MANAGER AND AGENT FOR THE
XXXXXX X. XXXXX FOUNDATION (MULTI-
MARKET ACCOUNT)
By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
CHASE VENTURE CAPITAL
ASSOCIATES, L.P.
By: Chase Capital Partners, its General
Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Name: Xxxxx X. Xxxxxxx
Title: General Partner
PRIVATE EQUITY INVESTORS III, L.P.
By: Xxxxx X. Xxxxx Associates III, LLC
General Partner
By: /s/ Xxxxx Xxxxx
-------------------
Name: Xxxxx Xxxxx
Title: Attorney-In-Fact
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EQUITY-LINKED INVESTORS-II
By: Xxxxx Xxxxx Associates-II
General Partner
By: /s/ Xxxxx Xxxxx
-------------------
Name: Xxxxx Xxxxx
Title: Attorney-In-Fact
LNR CANDLEWOOD HOLDINGS, INC.
By: /s/ Xxxxxxx X. Krascoff
---------------------------
Name: Xxxxxxx X. Krascoff
Title: President
DELAWARE STATE EMPLOYEES'
RETIREMENT FUNDS
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ signature illegible
---------------------------
Name:
Title:
17
DECLARATION OF TRUST FOR THE
DEFINED BENEFIT PLAN OF ZENECA
HOLDINGS INC.
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ signature illegible
---------------------------
Name:
Title:
DECLARATION OF TRUST FOR THE
DEFINED BENEFIT PLAN OF ICI
AMERICAN HOLDINGS INC.
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ signature illegible
---------------------------
Name:
Title:
X.X. XxXXXXXXX FAMILY TRUST
By: Pecks Management Partners Ltd.,
its Investment Advisor
By: /s/ signature illegible
---------------------------
Name:
Title:
18
ADVANCE CAPITAL PARTNERS, L.P.
By: Advance Capital Associates, L.P.
By: Advance Capital Management, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
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/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Principal
ALLIED CAPITAL CORPORATION
By: /s/ G. Xxxxxx Xxxxxxxx, III
-------------------------------
Name: G. Xxxxxx Xxxxxxxx, III
Title: Managing Director
19
ALLIED CAPITAL CORPORATION II
By: /s/ G. Xxxxxx Xxxxxxxx, III
-------------------------------
Name: G. Xxxxxx Xxxxxxxx, III
Title: Managing Director
THE FFJ 1997 NOMINEE TRUST
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Name: Xxxxxx X. Xxxxx
Title: Trustee
THE MUTUAL LIFE INSURANCE
COMPANY OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
J. ROMEO & CO.
By: /s/ Xxxxx Xxxxxx
--------------------
Name: Xxxxx Xxxxxx
Title: Partner
20
HARBOR INVESTMENTS LTD.
By: Strong Capital Management, Inc.,
its Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President & Acting
General Counsel
STRONG SPECIAL INVESTMENT LIMITED
PARTNERSHIP
By: Strong Capital Management,. Inc., its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President & Acting
General Counsel
STRONG QUEST LIMITED PARTNERSHIP
By: Strong Capital Management,. Inc., its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President & Acting
General Counsel
21
Acknowledgment and Agreement:
Each of the undersigned acknowledges and agrees to the termination of the Second
Stockholders Agreement as of the date hereof.
/s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx, Xx.
------------------------
Xxxxxx X. Xxxxx, Xx.
/s/ Xxxx Xxxxxxxx
-----------------
Xxxx Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------
Xxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxx Xxxxx
----------------
Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxx
-------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
----------------
Xxxxx Xxxxxx
/s/ Xxxxxxx Xxxx
----------------
Xxxxxxx Xxxx
/s/ Xxxxx Xxxxx
---------------
Xxxxx Xxxxx
22
/s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Xxxxxx X. Xxxxxx, Xx.
/s/ Xxxxx Xxxxxxx
-----------------
Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
----------------
Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
----------------
Xxxxx Xxxxxx
/s/ Xxxxx Xxxxxx
----------------
Xxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx XxXxxxxx
--------------------
Xxxxxxx XxXxxxxx
/s/ Xxxxxx X. XxXxxxxxx
-----------------------
Xxxxxx X. XxXxxxxxx
/s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
/s/ Xxxx Xxxxx
--------------
Xxxx Xxxxx
/s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
SCHEDULE X-0
Xxxxxxx Xxxxxx Xxxx XX, X.X.
Xxxxxxx Executive Fund, X.X.
Xxxxxx Guaranty Trust Company of
New York, as Trustee of the
Commingled Pension Trust Fund (Multi-
Market Special Investment Fund II) of
Xxxxxx Guaranty Trust Company of
New York
Xxxxxx Guaranty Trust Company of
New York, as Trustee of the Multi-
Market Special Investment Trust Fund of
Xxxxxx Guaranty Trust Company of
New York
Xxxxxx Guaranty Trust Company of
New York, as Investment Manager and
Agent for the Xxxxxx X. Xxxxx Foundation
(Multi-Market Account)
Chase Venture Capital Associates, L.P.
Private Equity Investors III, L.P.
Equity-Linked Investors-II
LNR Candlewood Holdings, Inc.
Delaware State Employees' Retirement Funds
Declaration of Trust for the Defined Benefit Plan of Zeneca Holdings, Inc.
Declaration of Trust for the Defined Benefit Plan of ICI American Holdings Inc.
X.X. XxXxxxxxx Family Trust
Advance Capital Partners, L.P.
Advance Capital Offshore Partners, L.P.
2
Allied Capital Corporation
Allied Capital Corporation II
The FFJ 1997 Nominee Trust
J. Romeo & Co.
Harbor Investments Ltd.
Strong Special Investment Limited Partnership
Strong Quest Limited Partnership
SCHEDULE A-2
Private Equity Investors III, L.P.
Equity-Linked Investors-II
Olympus Growth Fund II, L.P.
Olympus Executive Fund, L.P.
Delaware State Employees' Retirement Funds
Declaration of Trust for the Defined Benefit Plan of Zeneca Holdings, Inc.
Declaration of Trust for the Defined Benefit Plan of ICI American Holdings Inc.
X.X. XxXxxxxxx Family Trust
The Mutual Life Insurance Company of New York
Advance Capital Partners, L.P.
Advance Capital Offshore Partners, L.P.
SCHEDULE A-3
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxx
Xxxxx Xxxxx
Xxxxxx X. Xxxxxx, Xx.
Xxxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx XxXxxxxx
Xxxxxx X. XxXxxxxxx
Xxxxx X. Xxxxx
Xxxx Xxxxx
Xxxxxxx X. Xxxxx
