FINANCIAL INFORMATION

EX-4.4 3 a94616exv4w4.txt EXHIBIT 4.4 EXHIBIT 4.4 AMENDMENT NO. 1 TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT This Amendment No. 1 (this "AMENDMENT"), dated as of as of October 27, 2003, to the Amended And Restated Stockholders Agreement, dated as of July 10, 1998, by and among Candlewood Hotel Company, Inc., a Delaware corporation (the "COMPANY"), Doubletree Corporation, a Delaware corporation, the Warren D. Fix Family Partnership, L.P., Jack P. DeBoer and the other entities set forth on the signature pages thereto (the "STOCKHOLDERS AGREEMENT"). In consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt of which is hereby confirmed by the parties hereto, the parties to this Amendment hereby agree to amend the Stockholders Agreement, in accordance with Section 4.4 of the Stockholders Agreement, as follows: 1. Board Nominations. Section 2.1 of the Stockholders Agreement is hereby deleted and replaced in its entirety with the following: "2.1 Board Nominations. The Board of the Company shall be composed of five (5) members. With respect to such five (5) members, 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 two (2) 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, and (iii) that the Doubletree Holders together with the DeBoer/Fix Holders shall be entitled, through a nominating committee or other procedure adopted by the Board, to designate for nomination by the Board two (2) nominees for election to the Board (one (1) of whom shall be an independent director). Immediately upon the closing of the Transactions (as defined in Section 2 below), the Board of the Company shall be reduced to five (5) members and to the extent that any Holders wish to appoint or replace any of their designees to the Board, as permitted under this Section 2.1, at such time, the Board shall immediately designate any such designees and replacements." 2. Effectiveness. This Amendment shall not take effect unless and until (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 and (ii) the transactions 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, (collectively, the "TRANSACTIONS") have closed, and shall thereupon become effective immediately upon closing without any further action required by any party. If the Transactions do not close, this Amendment shall be of no force or effect. 3. Further Assurances. The Company and each of the parties hereto agree to take all action and to execute, deliver and file, or cause to be executed, delivered and filed, any and all documents, instruments and filings necessary to give effect to this Amendment, including causing the Company to adopt all necessary or desirable amendments to the By-laws of the Company. 4. Other Terms Not Modified or Amended. This Amendment shall not constitute an amendment or waiver of any other provision of the Stockholders Agreement not expressly referred to herein. Except as expressly set forth herein, the terms and conditions of the Stockholders Agreement remain in full force and effect without modification or amendment. 5. Governing Law. THIS AMENDMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS MADE AND TO BE ENTIRELY PERFORMED WITHIN SUCH STATE. 6. Counterparts. This Amendment may be executed simultaneously in two or more separate 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 Amendment to produce or account for more than one such counterpart. SIGNATURES FOLLOW ON NEXT PAGE. 2 IN WITNESS WHEREOF, the parties set forth below have signed this Amendment as of the date first hereinabove written. CANDLEWOOD HOTEL COMPANY, INC. By: /s/ Jack P. DeBoer -------------------------------- Name: Jack P. DeBoer Title: Chief Executive Officer DOUBLETREE CORPORATION By:_________________________________ Name: Title: Signature page to Amendment No. 1 to Amended and Restated Stockholders Agreement WARREN D. FIX FAMILY PARTNERSHIP, L.P. By: /s/ Warren D. Fix -------------------------------- Name: Warren D. Fix Title: General Partner /s/ Warren D. Fix ------------------------------------ Warren D. Fix JACK P. DeBOER, for himself and on behalf of the ALEXANDER DeBOER TRUST DATED MARCH 14, 1994 and the CHRISTOPHER SCOTT DeBOER TRUST DATED MARCH 14, 1995 /s/ Jack P. DeBoer ------------------------------------ Name: Jack P. DeBoer OLYMPUS GROWTH FUND II, L.P. By: OGP II, L.P., its General Partner By: RSM, L.L.C., its General Partner By: /s/ Robert S. Morris -------------------------------- Name: Robert S. Morris Title: General Partner Signature page to Amendment No. 1 to Amended and Restated Stockholders Agreement OLYMPUS EXECUTIVE FUND, L.P. By: OEF, L.P., its General Partner By: RSM, L.L.C., its General Partner By: /s/ Robert S. Morris ---------------------------------- Name: Robert S. Morris Title: General Partner JPMORGAN CHASE BANK, FORMERLY KNOWN AS MORGAN 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/ Joan Huggins ---------------------------------- Name: Joan Huggins Title: Vice President JPMORGAN CHASE BANK, FORMERLY KNOWN AS MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AS TRUSTEE OF THE MULTI-MARKET SPECIAL INVESTMENT TRUST FUND OF JPMORGAN CHASE BANK By: /s/ Joan Huggins ---------------------------------- Name: Joan Huggins Title: Vice President Signature page to Amendment No. 1 to Amended and Restated Stockholders Agreement JPMORGAN CHASE BANK, FORMERLY KNOWN AS MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AS INVESTMENT MANAGER AND AGENT FOR THE ALFRED P. SLOAN FOUNDATION (MULTI- MARKET ACCOUNT) By: /s/ Joan Huggins ---------------------------------- Name: Joan Huggins Title: Vice President J.P. MORGAN PARTNERS (SBIC), LLC, FORMERLY KNOWN AS CHASE VENTURE CAPITAL ASSOCIATES, L.P. By: Chase Capital Partners, its General Partner By: /s/ David Gilbert ------------------------------- Name: David Gilbert Title: Managing Director PRIVATE EQUITY INVESTORS III, L.P. By: Rohit M. Desai Associates III, LLC General Partner By: /s/ Frank J. Pados, Jr. ------------------------------- Name: Frank J. Pados, Jr. Title: Attorney-In-Fact Signature page to Amendment No. 1 to Amended and Restated Stockholders Agreement EQUITY-LINKED INVESTORS-II By: Rohit Desai Associates-II General Partner By: /s/ Frank J. Pados ------------------------------ Name: Frank J. Pados, Jr. Title: Attorney-In-Fact LNR CANDLEWOOD HOLDINGS, INC. By:___________________________________ Name: Title: DELAWARE STATE EMPLOYEES' RETIREMENT FUNDS By: Pecks Management Partners Ltd., its Investment Advisor By: /s/ Robert J. Cresci -------------------------------- Name: Robert J. Cresci Title: Managing Director Signature page to Amendment No. 1 to Amended and Restated Stockholders Agreement DECLARATION OF TRUST FOR THE DEFINED BENEFIT PLAN OF ZENECA HOLDINGS INC. By: Pecks Management Partners Ltd., its Investment Advisor By: /s/ Robert J. Cresci -------------------------------- Name: Robert J. Cresci Title: Managing Director DECLARATION OF TRUST FOR THE DEFINED BENEFIT PLAN OF ICI AMERICAN HOLDINGS INC. By: Pecks Management Partners Ltd., its Investment Advisor By: /s/ Robert J. Cresci -------------------------------- Name: Robert J. Cresci Title: Managing Director J.W. McCONNELL FAMILY TRUST By: Pecks Management Partners Ltd., its Investment Advisor By: /s/ Robert J. Cresci -------------------------------- Name: Robert J. Cresci Title: Managing Director Signature page to Amendment No. 1 to Amended and Restated Stockholders Agreement ADVANCE CAPITAL PARTNERS, L.P. By: Advance Capital Associates, L.P. By: Advance Capital Management, LLC By:_______________________________ Name: Title: ADVANCE CAPITAL OFFSHORE PARTNERS, L.P. By: Advance Capital Offshore Associates, LDC By: Advance Capital Associates, L.P. By: Advance Capital Management, LLC By:_______________________________ Name: Title: ALLIED CAPITAL CORPORATION By:_______________________________ Name: Title: Signature page to Amendment No. 1 to Amended and Restated Stockholders Agreement ALLIED CAPITAL CORPORATION II By:_______________________________ Name: Title: THE FFJ 1997 NOMINEE TRUST By:_______________________________ Name: Title: THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK By:_______________________________ Name: Title: J. ROMEO & CO. By:_______________________________ Name: Title: HARBOR INVESTMENTS LTD. By: Strong Capital Management, Inc., its Investment Advisor By:_______________________________ Name: Title: Signature page to Amendment No. 1 to Amended and Restated Stockholders Agreement STRONG SPECIAL INVESTMENT LIMITED PARTNERSHIP By: Strong Capital Management, Inc., its General Partner By:_______________________________ Name: Title: STRONG QUEST LIMITED PARTNERSHIP By: Strong Capital Management, Inc., its General Partner By:_______________________________ Name: Title: Signature page to Amendment No. 1 to Amended and Restated Stockholders Agreement