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EXHIBIT 10.12
NON-SOLICITATION AGREEMENT
BY AND AMONG
JOHN Q. HAMMONS,
JOHN Q. HAMMONS, AS TRUSTEE OF
THE REVOCABLE TRUST OF JOHN Q. HAMMONS, DATED
DECEMBER 28, 1989, AS AMENDED AND RESTATED,
JQH HOTELS MANAGEMENT, LLC,
JQH
ACQUISITION, LLC,
NEWCO, LLC,
JOHN Q. HAMMONS HOTELS, L.P.,
AND
JOHN Q. HAMMONS HOTELS, INC.
Dated as of _________________, 2005
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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"),
John Q. Hammons Hotels, L.P., a Delaware
limited partnership ("JQH LP"), John Q.
Hammons Hotels, Inc., a Delaware
corporation ("JQH, Inc."), John Q. Hammons
("JQH"), John Q. Hammons, as trustee of the
John Q. Hammons 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 John Q. Hammons
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.
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(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 Hammons, 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,
agreem
