EXHIBIT 17
TRANSACTION AGREEMENT
BY AND AMONG
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
REVOCABLE TRUST OF ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, DATED DECEMBER 28, 1989,
AS AMENDED AND RESTATED,
▇▇▇▇▇▇▇, INC.,
JD HOLDINGS, LLC,
AND
JQH ACQUISITION, LLC
Dated as of May 24, 2005
TRANSACTION AGREEMENT
THIS TRANSACTION AGREEMENT ("Agreement") is made as of May 24, 2005, by
and among JD Holdings, LLC, a Delaware limited liability company ("JDH"), JQH
Acquisition, LLC, a Delaware limited liability company ("JQHA"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("JQH"), the Revocable Trust of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, dated December 28, 1989, as
amended and restated ("JQH Trust"), and ▇▇▇▇▇▇▇, Inc., a Missouri corporation
("▇▇▇▇▇▇▇, Inc.," together with JQH and JQH Trust, the "Stockholders").
WHEREAS, the Stockholders own (i) common stock with a majority of the
voting power of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc., a Delaware corporation ("JQH
Inc."), that is the sole general partner of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, L.P., a
Delaware limited partnership ("JQH LP"), and (ii) limited partner interests in
JQH LP representing approximately 76% of the direct equity interests in JQH LP;
WHEREAS, JDH and JQHA have heretofore made a proposal to acquire all of
the shares of Class A common stock of JQH, Inc. and options to purchase Class A
Common Stock of JQH, Inc. through a cash merger transaction (the "Merger");
WHEREAS, JQH desires to obtain certain assets of JQH LP and financing for
hotel development activities;
WHEREAS, the Stockholders, after the Merger, desire to recapitalize JQH LP
to reflect the respective economic and other rights and obligations of the
partners with respect to JQH LP after the Closing, as defined herein; and
WHEREAS, the Stockholders are willing to vote all of their equity
interests in JQH Inc. and JQH LP in favor of, and otherwise support JDH and JQHA
in connection with, the proposed Merger and the transactions contemplated
hereby.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration given and received by each party,
receipt of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. For purposes of this Agreement, the following
capitalized terms shall have the meanings set forth below:
"Affiliate" means, as to any specified Person, (i) any trust, shareholder,
equity owner, officer or director of such Person and their family members or
(ii) any other Person which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, employed by or is under common
control with, the specified Person. For the purposes of this definition,
"control" means the possession of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise. The term "Affiliates" shall include
all Subsidiaries of such Person. For purposes of
1
this Agreement, JQH Inc., JQH LP, and their respective Subsidiaries shall not be
deemed to be "Affiliates" of any Stockholder.
"Alternative Transaction" means any (i) reorganization, dissolution,
liquidation or recapitalization of JQH Inc., JQH LP or any of their respective
Subsidiaries or involving JQH Inc., JQH LP or any of their respective
Subsidiaries, (ii) merger, consolidation, share exchange or acquisition of JQH
Inc., JQH LP or any of their respective Subsidiaries, (iii) sale of any material
amount of assets of JQH Inc., JQH LP or any of their respective Subsidiaries,
(iv) direct or indirect acquisition or purchase of any of the Equity Interests,
(v) any similar transaction or business combination involving JQH Inc., JQH LP
or any of their respective Subsidiaries or their respective businesses, capital
stock, partnership interests, other equity interests or assets or (vi) other
transaction the consummation of which would prevent, impede or delay the
consummation of the Transaction that, in each of the cases outlined in items (i)
through (vi) above, does not involve JDH or JQHA on terms acceptable to JDH and
JQHA in their sole discretion.
"Business Day" means any day other than a Saturday, Sunday or other day
which is a legal holiday in the State of Delaware.
"Closing" means the effective time of the Merger.
"Consent" means any approval, consent, ratification, permission, waiver or
authorization (including any Governmental Authorization).
"Consent Agreement" has the meaning set forth in Section 2.2(y).
"Equity Interests" has the meaning set forth in Section 4.2.
"Governmental Authorization" means any: (a) permit, license, certificate,
franchise, permission, variance, clearance, registration, qualification or
authorization issued, granted, given or otherwise made available by or under the
authority of any Governmental Body or pursuant to any Legal Requirement; or (b)
right under any contract with any Governmental Body.
"Governmental Body" means any: (a) nation, state, commonwealth, province,
territory, county, municipality, district or other jurisdiction of any nature;
(b) federal, state, local, municipal, foreign or other government; or (c)
governmental or quasi-governmental authority of any nature (including any
governmental division, department, agency, commission, instrumentality,
official, organization, unit, body or other Person and any court or other
tribunal).
"▇▇▇▇▇▇▇, Inc." has the meaning set forth in the Preamble.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder.
"JDH" has the meaning set forth in the Preamble.
"JQH" has the meaning set forth in the Preamble.
"JQH Inc." has the meaning set forth in the Preamble.
2
"JQH LP" has the meaning set forth in the Preamble.
"JQH Trust" has the meaning set forth in the Preamble.
"Legal Requirement" means any federal, state, local, municipal, foreign or
other law, statute, constitution, principle of common law, resolution,
ordinance, code, edict, decree, rule, regulation, ruling or requirement issued,
enacted, adopted, promulgated, implemented or otherwise put into effect by or
under the authority of any Governmental Body (or under the authority of The
American Stock Exchange or any other stock exchange, if applicable).
"Long-Term Line of Credit" has the meaning set forth in Section 2.2(w).
"Merger" has the meaning set forth in the Recitals.
"Options" has the meaning set forth in Section 4.2.
"Person" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, estate,
trust, association, organization or other entity or Governmental Body.
"Representatives" has the meaning set forth in Section 3.3(a).
"Shares" means shares of Class A common stock and Class B common stock of
JQH Inc. owned by any Stockholder.
"Short-Term Line of Credit Agreement" has the meaning set forth in Section
2.2(b).
"Stockholders" has the meaning set forth in the Preamble.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof or (ii) if a limited
liability company, partnership, association or other business entity (other than
a corporation), (x) a majority of the partnership or other similar ownership
interests thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof,
and for this purpose, a Person or Persons own a majority ownership interest in
such a business entity (other than a corporation) if such Person or Persons
shall be allocated a majority of such business entity's gains or losses or (y)
that Person shall be or control any managing director or general partner
controlling such business entity (other than a corporation).
"Transaction" has the meaning set forth in Section 2.1.
"Transaction Agreements" has the meaning set forth in Section 2.2.
"Transaction Component" has the meaning set forth in Section 2.1.
3
1.2 Other Definitional Provisions. References to "Sections," "Exhibits" or
"Schedules" shall be to sections of, or exhibits or schedules attached to, this
Agreement unless otherwise specifically provided. Any of the terms defined in
this Agreement may, unless the context otherwise requires, be used in the
singular or the plural, depending on the reference. Any reference herein to any
agreement, document or instrument, including, without limitation, this Agreement
and any exhibits, unless expressly noted otherwise, shall be a reference to each
such agreement, document or instrument as the same may be amended, restated,
supplemented or otherwise modified from time to time to the extent permitted
hereunder.
ARTICLE II
COMPONENT TRANSACTIONS AND AGREEMENTS
2.1 Negotiations. The parties to this Agreement have discussed a
comprehensive transaction (the "Transaction") that is comprised of numerous
components, each of which is reflected herein or is anticipated to be reflected
in one or more of the documents identified herein, and each of which is
dependent upon the other components and essential to the Transaction (each such
component, a "Transaction Component"). The parties hereto agree to continue
negotiating throughout the term of this Agreement exclusively and in good faith
the Transaction and the Transaction Components to achieve terms and conditions
of each Transaction Component and Transaction Agreement satisfactory in form and
content to each party thereto in its sole judgment.
2.2 Component Agreements. Various aspects of the Transaction contemplated
by the parties hereto are anticipated to be reflected in the following component
agreements and, where applicable, additional related agreements (collectively,
the "Transaction Agreements"):
(a) Merger Agreement.
(b) Short-Term Line of Credit Agreement (the "Short-Term Line of
Credit Agreement").
(c) Option Investment and Purchase Agreement.
(d) Form of Option Sales Agreement.
(e) Initial Partnership Agreement Amendment.
(f) Real Estate Sale and Noncompete Agreement Regarding Certain
Properties.
(g) Development Restriction Agreement.
(h) Chateau Agreement.
(i) Management Business Agreement.
(j) Third Amended and Restated Partnership Agreement.
(k) Preferred Interest Subscription Agreement.
4
(l) Preferred Interest Exchange Agreement.
(m) Tax Indemnity Agreement.
(n) Sponsor Entity Right of First Refusal.
(o) JQH Right of First Refusal.
(p) Corporate Overhead Agreement.
(q) Non-Solicitation Agreement.
(r) Trademark Assignments and Licenses.
(s) Hotels Lease Agreements.
(t) Prime Management Agreement.
(u) Management Services Agreements.
(v) Funding Assurance Agreement.
(w) Long-Term Line of Credit (the "Long-Term Line of Credit").
(x) Change of Control Purchase Offer.
(y) Agreement Regarding Consents (the "Consent Agreement").
ARTICLE III
COVENANTS
3.1 Support of the Merger.
(a) The Stockholders, jointly and severally, agree, to the extent
permitted by law, prior to the termination of this Agreement in accordance with
its terms, (i) to attend all meetings of the stockholders of JQH Inc., (ii) to
retain all voting rights with respect to the Equity Interests (as defined in
Section 4.2), and (iii) at every meeting of the stockholders of JQH Inc.,
however called, or every adjournment thereof, or in connection with any action
by written consent by the stockholders of JQH Inc. or limited partners of JQH
LP, to vote all of the Shares and all limited partner interests in JQH LP that
they own:
(i) in favor of the Merger, the Transaction and the
Transaction Agreements for which stockholder or limited partner
approval may be required; and
(ii) without regard to any recommendation from the Board of
Directors of JQH Inc. to stockholders or limited partners, against
any Competing Proposal (as defined in Section 3.3(a)) and any other
action or agreement that would reasonably be expected to prevent,
impede, adversely affect, compete with, interfere with, delay,
postpone or discourage the Merger or the Transaction (or
5
attempt to do any of the foregoing), including without limitation:
(A) any extraordinary corporate transaction, such as a merger,
rights offering, reorganization, recapitalization or liquidation
involving JQH Inc., JQH LP or any of their respective Subsidiaries,
(B) a sale or transfer of a material amount of assets of JQH Inc.,
JQH LP or any of their respective Subsidiaries, or the issuance of
any securities of JQH Inc., JQH LP or any of their respective
Subsidiaries, (C) any change in the executive officers or the Board
of Directors of JQH Inc., (D) any change in the present corporate or
partnership structure or business of JQH Inc. or JQH LP or (E)
except to the extent contemplated by any of the Transaction
Agreements, any amendment to the constitutive documents of JQH Inc.,
JQH LP or any of their respective Subsidiaries.
With respect to the matters set forth in (i) or (ii) above, upon the execution
and effectiveness of the written acceptance described in Section 6.1(a)(i) of
this Agreement, the Stockholders hereby revoke any and all prior proxies given
by the Stockholders with respect to the Equity Interests (the "Prior Proxies")
and agree not to grant any subsequent proxies with respect to the Equity
Interests until after the termination of this Agreement in accordance with its
terms. The Stockholders shall retain their voting power with respect to the
Equity Interests in connection with any matters, other than the matters set
forth in (i) or (ii) above, and shall exercise their voting power on such
matters to the extent permitted by law.
3.2 No Sale of Equity Interests. Prior to the termination of this
Agreement in accordance with its terms and except as set forth otherwise in this
Agreement and the Transaction Agreements, the Stockholders shall not:
(a) sell, offer, assign, transfer, convert, pledge or otherwise
dispose of or encumber, directly or indirectly, any of the Equity Interests or
grant any options or rights to the Equity Interests, or any of the Stockholders'
voting or economic interest therein, to any third party, or, directly or
indirectly, solicit or entertain offers from any third party to enter into any
such transaction;
(b) grant any proxies or enter into any voting agreement or other
arrangement with respect to any of the Equity Interests;
(c) deposit any Equity Interests into a voting trust;
(d) convert, or allow conversion of, shares of Class B common stock
into shares of Class A common stock; or
(e) cause to be declared or paid any dividends on, cause to be made
any other distributions in respect of, or cause to be redeemed or otherwise
purchased, any of equity interests (including any Options therefor) of JQH Inc.
or JQH LP.
3.3 No Solicitation. Prior to the termination of this Agreement in
accordance with its terms and except as set forth otherwise in this Agreement,
(a) each of the Stockholders shall discontinue immediately any
existing solicitation, initiation, encouragement, activity, discussion or
negotiation with any Persons conducted prior to the date hereof by such
Stockholder or any of its Affiliates, advisors, agents or
6
representatives (collectively, the "Representatives"), with respect to any
proposed, potential or contemplated Alternative Transaction;
(b) none of the Stockholders shall, nor shall any of them authorize
or permit any of its Affiliates or any of its or its Affiliates' Representatives
to, directly or indirectly, (i) solicit or initiate, or encourage the submission
of, any proposal or indication of interest relating to an Alternative
Transaction, (ii) participate in any discussions or negotiations regarding, or
furnish to any Person any information with respect to, or take any other action
to facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, any Alternative Transaction or (iii)
authorize, approve, consummate, engage in, or enter into any agreement with
respect to, any Alternative Transaction; and
(c) in the event that any of the Stockholders or its Affiliates or
their respective Representatives receives an offer, proposal or similar
communication regarding an Alternative Transaction, the Stockholders shall
promptly deliver written notice of such communication to JDH and JQHA, including
reasonable details of the substance thereof.
3.4 Action in Stockholder Capacity Only. This Agreement shall not apply to
any action taken by JQH in his capacity as a director or officer of JQH Inc.,
and any actions taken by JQH pursuant to this Agreement shall be solely actions
in his capacity as a stockholder of JQH Inc. and a limited partner of JQH LP.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
The Stockholders hereby represent and warrant, jointly and severally, to
JQHA and JDH, as of the date hereof and as of Closing, that:
4.1 Power and Authority. Each Stockholder has all requisite power and
authority to execute and deliver this Agreement and the Transaction Agreements
and all other agreements or documents as contemplated as of this date to be
executed or delivered pursuant to this Agreement and the Transaction Agreements
or in connection with the Transaction, as applicable, and as such agreements and
documents are currently contemplated, to perform its or his obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. This Agreement has been duly executed and delivered by each
Stockholder and constitutes a valid and binding obligation of each Stockholder,
enforceable against it or him in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and by general equitable principles. All
of the Prior Proxies are revocable, as contemplated by Section 3.1(a) hereof.
4.2 Title to Equity Interests. As of the date hereof, each Stockholder
owns the equity interests shown next to such Stockholder's name on Schedule 4.2
(collectively, "Equity Interests"), free and clear of any liens, pledges,
charges, claims, security interests, rights of first offer or rights of first
refusal or other encumbrances other than the rights and obligations arising
under this Agreement, and none of the Equity Interests are subject to any
outstanding option, warrant, call, or similar right of any other Person to
acquire the same, and none of the Equity Interests are subject to any
restriction on transfer thereof except for restrictions imposed by applicable
federal and state securities laws or the partnership agreement of JQH LP. At
Closing,
7
assuming receipt of any consent required under the JQH LP partnership agreement,
each Stockholder will have full power and authority to convey good and
marketable title to the Equity Interests, free and clear of any liens, security
interests, rights of first offer or rights of first refusal or other
encumbrances. The Equity Interests constitute all of the equity interests of JQH
Inc. and JQH LP (including, without limitation, capital stock and partnership
interests and options, appreciation rights, warrants or other rights, contracts,
arrangements or commitments of any character (collectively "Options") relating
to the capital stock or partnership interests of JQH Inc. and JQH LP,
respectively, or obligating either of JQH Inc. or JQH LP to issue, grant or sell
any shares of capital stock of, or other equity interests in, or securities
convertible into equity interests in, JQH Inc. or JQH LP) owned, directly or
indirectly, by the Stockholders. Schedule 4.2 also sets forth the number and
exercise price of all Options owned, directly or indirectly, by the
Stockholders.
4.3 Non-Contravention.
(a) Except as set forth on Schedule 4.3(a) and other than any
consents, approvals or other actions, the failure to obtain which would
not materially impair the ability to consummate the Transaction or impose
any material liability on the Stockholders or any of their Affiliates, the
execution, delivery, and performance of this Agreement (as well as all
other instruments, agreements, certificates, or other documents
contemplated hereby or in connection herewith or with the Transaction
(including, without limitation, the Transaction Agreements), in the forms
currently contemplated) by each Stockholder, do not (a) violate any laws
or any order of any court or other Governmental Body applicable to such
Stockholder or any of its or his Affiliates, (b) violate or conflict with,
or permit the cancellation of, or constitute a default under, any material
agreement to which any Stockholder or any of their respective Affiliates
are a party, or by which any of them or any of their respective properties
are bound, or (c) permit the acceleration of the maturity of any material
indebtedness of, or indebtedness secured by the property of, any
Stockholder or any of their respective Affiliates.
(b) Except as set forth on Schedule 4.3(b), the execution, delivery,
and performance of this Agreement (as well as all other instruments,
agreements, certificates, or other documents contemplated hereby or in
connection herewith or with the Transaction (including, without
limitation, the Transaction Agreements), in the forms currently
contemplated) by each Stockholder, do not violate or conflict with any
provision of the organizational instruments of ▇▇▇▇▇▇▇, Inc., JQH Trust or
any Affiliates of any Stockholder involved in the Transaction.
4.4 Consents, Approvals and Filings. Except as set forth on Schedule 4.4
or as otherwise provided herein and other than any filings required under the
HSR Act and any consents, approvals or other actions, the failure to obtain
which would not materially impair the ability to consummate the Transactions or
impose any material liability on the Stockholders or any of their Affiliates, no
consent, approval, authorization or determination of, or declaration, filing or
registration with, or other action by, any Governmental Body or any other Person
is required to be made or sought by any Stockholder or any of their Affiliates
in connection with the execution, delivery and performance of this Agreement and
all other contemplated agreements or documents to be executed or delivered by
any Stockholder or any of their
8
Affiliates pursuant to this Agreement (including, without limitation, the
Transaction Agreements), and the consummation by the Stockholders of the
Transaction.
4.5 Tax Matters. The transactions contemplated by this Agreement and all
other related agreements and documents (including, without limitation, the
Transaction Agreements) involve complex tax consequences for the Stockholders,
and (i) the Stockholders are relying solely on the advice of their own tax
advisors in evaluating such consequences, (ii) none of JQHA, JDH nor any
Affiliate of JQHA or JDH has made (or shall be deemed to have made) any
representations or warranties as to the tax consequences of any such transaction
to the Stockholders, and (iii) references, if any, in this Agreement or any of
the Transaction Agreements to the intended tax effect of any transaction
contemplated by this Agreement or any of the Transaction Agreements and the
other matters described herein shall not be deemed to imply any representation
by JQHA, JDH or their Affiliates as to any particular tax effect that may be
obtained by any Stockholder or its direct or indirect beneficiary or equity
holder, as relevant. Each Stockholder shall remain solely responsible for all
tax matters relating to such Stockholder or its beneficiaries or equity holders,
as relevant.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
JDH AND JQHA
JDH and JQHA hereby, jointly and severally, represent and warrant to the
Stockholders, as of the date hereof and as of Closing, that:
5.1 Power and Authority. JDH and JQHA each has all requisite power and
authority to execute and deliver this Agreement and all other agreements or
documents contemplated to be executed or delivered pursuant to this Agreement or
in connection with any of the Transactions, as applicable, to perform its
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. This Agreement has been duly executed and
delivered by each of JDH and JQHA and constitutes a valid and binding obligation
of each of them, enforceable against them in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and by general equitable
principles.
5.2 Non-Contravention. Other than any consents, approvals or other
actions, the failure to obtain which would not materially impair the ability to
consummate the Transaction or impose any material liability on JDH, JQHA or
their respective Affiliates, the execution, delivery and performance of this
Agreement by each of JDH and JQHA, as applicable, do not, as to each such party,
as applicable: (a) violate their respective organizational documents; (b)
violate any applicable law, rule, regulation, ordinance, order, judgment, decree
or award of any governmental body, court or arbitrator; or (c) conflict with,
result in a breach of, or constitute a default under, any contract, agreement or
other instrument to which it is a party or by which any of its properties may be
bound or affected.
5.3 Consents, Approvals and Filings. Other than any filings required under
the HSR Act and any consents, approvals or other actions, the failure to obtain
which would not materially impair the ability to consummate the Transactions or
impose any material liability on JDH, JQHA or their respective Affiliates, and
except for approval of the terms of the definitive
9
agreements relating to the Transaction to which JDH or JQHA is a party by the
respective boards of managers and members, as applicable, of JDH and JQHA, no
consent, approval, authorization or determination of, or declaration, filing or
registration with, or other action by, any governmental body or any other Person
is required to be made or sought by JDH or JQHA or any of their Affiliates in
connection with the execution, delivery and performance of this Agreement and
all other agreements or documents executed or delivered by JDH or JQHA or any of
their Affiliates pursuant to this Agreement, and the consummation by JDH or JQHA
of the Transactions contemplated hereby and thereby.
5.4 Information. JQHA will make available to the Stockholders all
documents that the Stockholders reasonably request concerning the
capitalization, business, liabilities and the assets of JQHA and its
Subsidiaries and will provide answers to all Stockholders' reasonable questions
in connection therewith.
5.5 Financial Position. JDH and JQHA reasonably expect that, as of the
Closing, they will have, and at Closing they will demonstrate to the
Stockholders, sufficient financial resources and liquidity to enter into, and
perform their respective obligations under, the Transaction Agreements.
ARTICLE VI
TERMINATION
6.1 Termination Events. Subject to the provisions of Section 6.2, this
Agreement may be terminated and abandoned, by written notice given prior to the
effectiveness of the Merger in the manner hereinafter provided, as follows:
(a) by the Stockholders, on the one hand, or by JDH and JQHA, on the
other hand, if:
(i) either the Stockholders on one hand, or JQH and JQHA on
the other hand, in their sole and absolute discretion, following
negotiations under Section 2.1, have not executed and delivered
written acceptance of, and acknowledged the intent to be bound at
Closing by, the finally negotiated Transaction Agreements by
midnight Central Standard Daylight Savings Time, June 2, 2005;
(ii) at any time following execution and delivery of the
Short-Term Line of Credit Agreement and prior to Closing, funding
thereunder is not available to the borrower upon the borrower's
satisfaction of all applicable terms and conditions thereunder; or
(iii) the Closing shall not have occurred on or before
December 31, 2005; provided, however, that the right to terminate
this Agreement pursuant to this Section 6.1(a)(iii) will not be
available to any party whose failure to perform or observe any of
its obligations under this Agreement or any Transaction Agreement
has been the cause of, or resulted in, the failure of the Closing to
occur on or before such date.
(b) by mutual written consent of the parties hereto;
10
(c) by JDH and JQHA, if any of the Stockholders materially breaches
any of its representations, warranties, covenants or other agreements under this
Agreement and, with respect to any breach of a covenant contained herein, such
breach is not cured within ten (10) days after written notice to the
Stockholders by JDH or JQHA; provided, however, that no cure period will be
permitted for any such breach that by its nature cannot be cured or as a result
of such breach; or
(d) by the Stockholders, if either JDH or JQHA materially breaches
any of its representations, warranties, covenants or other agreements under this
Agreement and, with respect to any breach of a covenant contained herein, such
breach is not cured within ten (10) days after written notice to JDH and JQHA by
the Stockholders; provided, however, that no cure period will be permitted for
any such breach that by its nature cannot be cured or as a result of such
breach.
6.2 Effect of Termination. In the event that this Agreement is terminated
in accordance with Section 6.1, such termination shall be without any liability
or obligation to any party or parties and all further obligations of the parties
hereunder shall terminate; provided that, (a) to the extent that such
termination arises out of a material breach by a party hereto of any of its
representations, warranties, covenants or other agreements arising under this
Agreement, such breaching party will be liable for all damages, including
reasonable legal fees and expenses, allowable at law and any relief available at
equity; and (b) the obligations of the parties to this Agreement under Section
8.2, Section 8.3, Section 8.11 and this Section 6.2 will survive any termination
of this Agreement.
ARTICLE VII
CLOSING CONDITIONS
7.1 Conditions to Obligations of Stockholders. The obligation of the
Stockholders to consummate the Transaction (including each of the Component
Transactions) shall be subject to the satisfaction or written waiver as of, or
immediately after (as the case may be), the Closing of the following conditions:
(a) JQHA or its Affiliates shall have entered into the Transaction
Agreements which contemplate JQHA or its Affiliates as parties in form and
substance satisfactory to the Stockholders, and such Transaction Agreements
shall be in full force and effect as of the Closing.
(b) The representations and warranties of JDH and JQHA set forth in
this Agreement (including the disclosure schedules attached hereto) shall have
been true and correct in all material respects as of the date hereof and shall
be true and correct in all material respects as of the Closing as though made on
and as of the Closing.
(c) Each of the agreements and covenants of any of JDH, JQHA, their
Affiliates and the lender under the Short-Term Line of Credit Agreement and
Long-Term Line of Credit to be performed and complied with by such Person
pursuant to this Agreement and the Transaction Agreements prior to, as of, or
immediately after (as the case may be), the Closing shall have been duly
performed and complied with in all material respects.
11
(d) The Merger shall have been declared effective by the Secretary
of State of the State of Delaware in accordance with the provisions of Section
251 of the General Corporation Law of the State of Delaware.
(e) The Consents identified in the Consent Agreement as closing
conditions for the Stockholders shall have been obtained, made or given, as
applicable, and shall be in full force and effect.
7.2 Conditions to Obligations of JDH and JQHA. The obligation of JDH and
JQHA to consummate the Transaction (including each of the Component
Transactions) shall be subject to the satisfaction or written waiver as of, or
immediately after (as the case may be), the Closing of the following conditions:
(a) The Stockholders or their respective Affiliates shall have
entered into the Transaction Agreements which contemplate the Stockholders or
their respective Affiliates as parties in form and substance satisfactory to JDH
and JQHA, and such Transaction Agreements shall be in full force and effect as
of the Closing.
(b) The representations and warranties of the Stockholders set forth
in this Agreement (including the disclosure schedules attached hereto) shall
have been true and correct in all material respects as of the date hereof and
shall be true and correct in all material respects as of the Closing as though
made on and as of the Closing.
(c) Each of the agreements and covenants of any of the Stockholders
and their Affiliates to be performed and complied with by such Person pursuant
to this Agreement and the Transaction Agreements prior to, as of, or immediately
after (as the case may be), the Closing shall have been duly performed and
complied with in all material respects.
(d) The Merger shall have been declared effective by the Secretary
of State of the State of Delaware in accordance with the provisions of Section
251 of the General Corporation Law of the State of Delaware.
(e) The Consents identified in the Consent Agreement as closing
conditions for JDH and JQHA shall have been obtained, made or given, as
applicable, and shall be in full force and effect.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 Further Action. Subject to the terms and conditions hereof, each of
the parties hereto shall use commercially reasonable efforts to take or cause to
be taken all appropriate action, do or cause to be done all things necessary,
proper or advisable, and execute and deliver such documents and other papers, as
may be required to carry out the provisions of this Agreement and consummate and
make effective the Transaction.
8.2 No Disclosure. Without the prior written consent of the other party,
neither JDH or JQHA, on the one hand, nor any of the Stockholders, on the other
hand, will, and each of such parties shall cause their respective Affiliates and
their and their respective Affiliates' Representatives not to, make any release
to the press or other public disclosure, or make any
12
statement to any employee, competitor, customer, client or supplier of any of
such parties or any of their Subsidiaries or to any other person, with respect
to the terms of the discussions or negotiations concerning the Transaction or
the existence or contents of this Agreement, except for (i) disclosure to such
party's Representatives, (ii) any filings or amendments to such filings that any
party determines it is required to make under the Securities Act, and (iii) such
public disclosure as may be necessary, based on advice of such party's outside
counsel, for the party proposing to make the disclosure not to be in violation
of or default under any applicable law, regulation or governmental order, in
which event such party shall, at least one full Business Day prior to making
such disclosure, inform the other parties of such proposed disclosure and
reasonably cooperate with such other parties regarding the proposed content of
such disclosure. Notwithstanding the foregoing, none of the foregoing
obligations shall apply to JDH or JQHA after the Closing, provided that they
shall be required after the Closing to obtain the consent of JQH (which consent
shall not be unreasonably withheld or delayed) prior to making any press release
or other public announcements with respect to the terms of the Transaction,
subject to the exceptions set forth in clauses (i), (ii) and (iii) immediately
foregoing.
8.3 Expenses. Except as otherwise agreed to in any of the Transaction
Agreements, each party shall bear its or his own expenses (including those of
its or his accountants, advisers or other agents or representatives) incident to
the preparation, negotiation, execution and delivery of this Agreement and the
other agreements relating to the Transactions and the performance of its or his
obligations hereunder.
8.4 Survival of Representations and Warranties and Covenants. The
representations and warranties and other covenants contained in this Agreement
shall survive the consummation of the Merger and the closing of the Transaction.
8.5 Amendments; Waivers. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, each of the
parties hereto. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver or
deprive such party of the right to insist later on adherence thereto, or
thereafter to insist upon strict adherence to that term or any other term of
this Agreement. Any waiver must be in writing and signed by the party against
whom enforcement is sought in order to be effective.
8.6 Exhibits and Schedules. The exhibits and schedules to this Agreement
shall be construed with and as integral parts of this Agreement to the same
extent as if they were set forth verbatim herein.
8.7 Interpretation. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement. The terms "herein," "hereof," "hereunder" and
any similar terms used in this Agreement refer to this Agreement, and all
references to "this Agreement" refer to this Agreement and the schedules and
exhibits hereto, as amended from time to time. The terms "including" or
"include" shall mean "including, without limitation," or "include, without
limitation," as the case may be.
8.8 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
13
requested, postage prepaid, (b) upon verbal confirmation of receipt by the
recipient when transmitted by telecopier or electronic mail 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
telecopier number as a party may specify from time to time by notice hereunder):
(a) If to a Stockholder:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
The Revocable Trust of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Dated December 28,
1989, as amended and restated
▇▇▇▇▇▇▇, Inc.
300 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as a Stockholder, Trustee of
JQH Trust and President of ▇▇▇▇▇▇▇, Inc.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(i)If to JDH or JQHA:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇ ▇▇▇▇▇▇▇, LLC
Three First National Plaza
70 West Madison Street, Suite 4100
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
14
8.9 Successors; Assignment. This Agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their successors by operation of law
or otherwise and may not be assigned without the prior written consent of the
other parties, and any attempted assignment without such consent shall be null
and void; provided that JDH and JQHA shall have the right to assign all or any
portion of their rights and obligations under this Agreement to one or more
wholly-owned Subsidiaries of JDH or JQHA (including any Subsidiary which may be
organized subsequent to the date hereof), provided that no such assignment shall
in any manner limit or impair the obligations of JDH and JQHA hereunder.
8.10 No Third-Party Beneficiaries. Nothing in this Agreement is intended
to, or shall be construed to, confer upon any Person not a party hereto any
rights or benefits hereunder.
8.11 Governing Law. The interpretation and construction of this Agreement
and (unless otherwise expressly provided herein) all amendments hereof and
waivers and consents hereunder shall, to the extent the particular subject
matter is controlled by state law, be governed by and be construed in accordance
with the substantive law of the State of Delaware, without regard to the
conflicts of laws principles thereof.
8.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
15
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement, or caused this Agreement to be duly executed and delivered on their
behalf, as of the date first above written.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
THE REVOCABLE TRUST OF ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, DATED DECEMBER
28, 1989, AS AMENDED AND RESTATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Trustee
JD HOLDINGS, LLC a Delaware limited liability
company
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
JQH ACQUISITION, LLC, a Delaware limited liability
company
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
16