EXHIBIT 10.12
NON-SOLICITATION AGREEMENT
BY AND AMONG
XXXX X. XXXXXXX,
XXXX X. XXXXXXX, AS TRUSTEE OF
THE REVOCABLE TRUST OF XXXX X. XXXXXXX, DATED
DECEMBER 28, 1989, AS AMENDED AND RESTATED,
JQH HOTELS MANAGEMENT, LLC,
JQH ACQUISITION, LLC,
NEWCO, LLC,
XXXX X. XXXXXXX HOTELS, L.P.,
AND
XXXX X. XXXXXXX HOTELS, INC.
Dated as of _________________, 2005
NON-SOLICITATION AGREEMENT
THIS NON-SOLICITATION AGREEMENT (this "Agreement") is entered into as of ,
2005, by and among JQH Acquisition, LLC, a Delaware limited liability company
("JQHA"), Newco Hotels, LLC, a Delaware limited liability company ("Newco"),
Xxxx X. Xxxxxxx Hotels, L.P., a Delaware limited partnership ("JQH LP"), Xxxx X.
Xxxxxxx Hotels, Inc., a Delaware corporation ("JQH, Inc."), Xxxx X. Xxxxxxx
("JQH"), Xxxx X. Xxxxxxx, as trustee of the Xxxx X. Xxxxxxx Revocable Trust,
dated December 29, 1989, as amended and restated ("JQH Trust") and JQH Hotels
Management, LLC ("JQHHM "), a Delaware limited liability company.
WHEREAS, pursuant to the Management Assets and Obligations Distribution
Agreement dated of even date herewith, by and between JQHA, JQH, Inc., JQH LP
and JQHHM (the "Management Assets and Obligations Distribution Agreement"), JQH,
Inc. and JQH LP distributed to JQHHM certain assets used in the provision of
hotel management services for certain hotel properties owned leased and/or
managed by JQHA, JQH Inc., JQH LP and their affiliates;
WHEREAS, pursuant to the Management Services Agreement, dated of even date
herewith, by and between [TRS] and JQHHM, [TRS] has, among other things,
appointed JQHHM to provide management services for and manage and operate
certain hotel properties and associated convention and banquet facilities leased
by [TRS] from JQH LP and Xxxx X. Xxxxxxx Hotels Two, L.P., a Delaware limited
partnership;
WHEREAS, pursuant to separate management agreements with third parties,
JQHHM manages other hotel properties and associated convention and banquet
facilities; and
WHEREAS, the parties hereto desire that JQH obtain certain
non-solicitation protections from the other parties hereto with regard to the
JQH Employees (as defined herein).
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
1. Definitions: Certain capitalized terms used herein shall have the
meanings set forth below.
(a) "Affiliate" shall mean any individual or entity, directly or
indirectly through one or more intermediaries, controlling, controlled by,
or under common control with a party. The term "control," as used in the
immediately preceding sentence, means, with respect to a corporation, the
right to exercise, directly or indirectly, fifty percent (50%) or more of
the voting rights attributable to the shares of the controlled corporation
and, with respect to an entity that is not a corporation, the possession,
directly or indirectly, of the power to direct or cause the direction of
the management or policies of the controlled entity.
(b) "JQH Employees" means all management level employees of JQH,
Inc. who in connection with the Merger Transaction became employed by
JQHHM pursuant to the Management Assets and Obligations Distribution
Agreement.
(c) "Person" means an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
2. Non-Solicitation of Employees. The parties hereby agree that JQHA, JQH,
Inc., JQH LP and their respective Affiliates shall not solicit to hire or hire
any JQH Employees without the prior written consent of JQH, which approval may
be withheld by JQH in his sole and absolute discretion. The provisions of this
Section 2 shall expire on the earlier to occur of: (x) full redemption, sale,
transfer, gift, or other permitted disposition by JQH and his Affiliates of all
of their preferred interests in JQH LP, or (y) JQH's death.
3. Enforcement.
(a) Reasonable and Necessary Restrictions. The parties hereto
acknowledge that the restrictions, prohibitions and other provisions
hereof are reasonable, fair and equitable and are necessary to protect
respective legitimate business interests of JQHHM, JQH and JQH Trust and
are a material inducement to JQH consummating the transactions
contemplated by the Merger Agreement, dated of even date herewith, by and
among JQHA, Merger Sub, a Delaware company ("Merger Sub") and JQH, Inc.
and the Amended and Restated Transaction Agreement, dated of even date
herewith, by and among JD Holdings, LLC, a Delaware limited liability
company, JQHA, JQH, JQH Trust and Xxxxxxx, Inc.
(b) Specific Performance. The parties hereto acknowledge that the
obligations undertaken pursuant to this Agreement are unique and that
JQHHM and JQH will have no adequate remedy at law if the other parties
hereto fail to perform any of its or their respective obligations
hereunder. The parties hereto confirm that the rights of JQHHM and JQH to
specific performance of the terms of this Agreement are essential to
protect their respective rights and interests. Accordingly, in addition to
any other remedies that JQHHM and JQH may have at law or in equity, they
shall each have the right to seek to have all obligations, covenants,
agreements and other provisions of this Agreement specifically performed
by the other parties hereto, and shall have the right to obtain
preliminary and permanent injunctive relief to secure specific performance
and to prevent a breach or contemplated breach of this Agreement.
(c) Severability. This Agreement will be deemed severable and the
invalidity or unenforceability of any term or provision hereof will not
affect the validity or enforceability of this Agreement or any other term
or provision hereof.
2
4. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof restricting
assignment, all covenants and agreements in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors, assigns, heirs, and personal representatives.
(b) Assignment. None of the parties hereto may assign any of his or
its rights under this Agreement or attempt to have any other person or
entity assume any of his or its obligations hereunder, without the consent
of the other parties hereto. Notwithstanding the foregoing, each party
hereto may assign his or its rights, but not obligations, under this
Agreement to an Affiliate of such party.
(c) Integration; Amendment. This Agreement constitutes the entire
agreement between the parties hereto with respect to the matters set forth
herein and supersedes and renders of no force and effect all prior oral or
written agreements, commitments and understandings among the parties with
respect to the matters set forth herein. Except as otherwise expressly
provided in this Agreement, no amendment, modification or discharge of
this Agreement shall be valid or binding unless set forth in writing and
duly executed by each of the parties hereto.
(d) Waivers. No waiver by a party hereto shall be effective unless
made in a written instrument duly executed by the party against whom such
waiver is sought to be enforced, and only to the extent set forth in such
instrument. Neither the waiver by any of the parties hereto of a breach or
a default under any of the provisions of this Agreement, nor the failure
of any of the parties, on one or more occasions, to enforce any of the
provisions of this Agreement or to exercise any right or privilege
hereunder shall thereafter be construed as a waiver of any subsequent
breach or default of a similar nature, or as a waiver of any such
provisions, rights or privileges hereunder.
(e) Governing Law; Jurisdiction. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating
thereto, shall be governed by and construed in accordance with the
internal laws of the State of Delaware.
(f) Waiver of Jury Trial. 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
3
PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) 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
SUCH WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN
INDUCED TO ENTER THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 4(F).
(g) Jurisdiction; Service of Process. Any action or proceeding
seeking to enforce any provision of, or based on any right arising out of,
this Agreement shall be brought against any of the parties only in the
Courts of the State of Delaware or, if it has or can acquire jurisdiction,
in the United State District Court for the District of Delaware, and each
of the parties consents to the exclusive jurisdiction of such courts (and
of the appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein. Process in any action or
proceeding referred to in the preceding sentence may be served on any
party anywhere in the world.
(h) Headings. Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in
any way define or affect the meaning, construction or scope of any of the
provisions hereof.
(i) Execution in Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be deemed an original, and all
such counterparts shall constitute one and the same agreement. Any
counterpart to which original or facsimile signatures of all parties are
attached shall constitute an original of this Agreement.
(j) Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given (a) when delivered
by hand or certified mail, return receipt requested, postage prepaid, (b)
when transmitted by telecopier (providing confirmation of transmission) or
(c) when received if sent by overnight courier (providing proof of
delivery), to the addressee at the following addresses or telecopier
numbers (or to such other address or telecopier number as a party may
specify from time to time by notice hereunder):
If to JQH, JQH Trust or JQHHM:
Xxxx X. Xxxxxxx
300 Xxxx X. Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
4
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx and
Xxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to JQHA, Newco, JQH, Inc. or JQH LP:
JQH Acquisition, LLC
Carnegie Hall Tower
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx LLC
Three First National Plaza
41st Floor
00 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxxxx, Esq
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices shall be deemed given when delivered personally, one day after
being delivered to a nationally recognized overnight courier or when telecopied
(with a confirmatory copy sent by such overnight courier)
[SIGNATURE PAGES FOLLOW]
5
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement,
or caused this Agreement to be duly executed on its behalf, as of the date first
set forth above.
XXXX X. XXXXXXX
___________________________________________
Xxxx X. Xxxxxxx
THE REVOCABLE TRUST OF XXXX X.
XXXXXXX, DATED DECEMBER 28, 1989, AS
AMENDED AND RESTATED
By:________________________________________
Name: Xxxx X. Xxxxxxx
Title: Trustee
JQH HOTELS MANAGEMENT, LLC,
a Delaware limited liability company
By:________________________________________
Name:______________________________________
Title:_____________________________________
JQH ACQUISITION, LLC,
a Delaware limited liability company
By:________________________________________
Name:______________________________________
Title:_____________________________________
NEWCO HOTELS, LLC
a Delaware limited liability company
By:________________________________________
Name:______________________________________
Title:_____________________________________
6
XXXX X. XXXXXXX HOTELS, INC.,
a Delaware corporation
By:________________________________________
Name:______________________________________
Title:_____________________________________
XXXX X. XXXXXXX HOTELS, L.P.,
a Delaware limited partnership
By: XXXX X. XXXXXXX HOTELS, INC.,
a Delaware corporation
By:________________________________________
Name:______________________________________
Title:_____________________________________
7
