EXHIBIT 3
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STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT, dated as of January 31, 2005 (this
"Agreement"), is entered into by and between JQH Acquisition LLC ("Bidder") and
[___________] ("Stockholder").
WHEREAS, as of the date hereof, Stockholder is the direct or
indirect beneficial owner of the shares of the Class A Common Stock, par value
$.01 per share (the "Common Stock"), of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc., a Delaware
corporation (the "Company"), described in the form Schedule 13D of "JQH
Shareholders for Fair Play" originally filed with the Securities and Exchange
Commission on October 26, 2004, as the same from time to time may be amended,
currently [___] shares (the "Shares");
WHEREAS, the parties understand pursuant to public announcements
that the Special Committee of the Board of Directors of the Company (the
"Special Committee") granted to Barcelo Crestline Corporation an exclusive
period of time within which to negotiate to acquire all of the outstanding
shares of the Common Stock, which period shall expire on January 31, 2005;
WHEREAS, the Bidder intends, not later than January 31, 2005, to
deliver to the Special Committee a written proposal stating Bidder's willingness
to commence the Offer (defined below) subject only to the Conditions (defined
below) to purchase either all (in the case of a non-tender offer transaction) or
any and all of the Company's Common Stock (which Offer may include Common Stock
owned by the Company's founder, ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or his trusts and affiliates
(collectively, "▇▇. ▇▇▇▇▇▇▇"), pursuant to an agreement between the Bidder and
▇▇. ▇▇▇▇▇▇▇ which may include, inter alia, arrangements involving limited
partnership interests of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, LP, a Delaware limited
partnership (the "Partnership") owned by ▇▇. ▇▇▇▇▇▇▇ and other terms relating to
▇▇. ▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇ Agreement")); and
WHEREAS, subject to the satisfaction of the Bidder's obligations
contained herein, the Stockholder agrees to support the Bidder's Offer during
the term of this Agreement, upon the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein the parties hereto agree as follows:
ARTICLE I
BIDDER'S OBLIGATIONS.
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Section 1.01 The Bidder intends, not later than January 31, 2005, to
deliver to the Special Committee, in writing, a notification of the Bidder's
willingness to commence the Offer as promptly as practicable. As used herein,
the term "Offer" means a fully-financed (i.e.,
not contingent on financing), bona fide offer by the Bidder to purchase or
otherwise acquire (whether by tender offer, merger or otherwise) either all (in
the case of a non-tender offer transaction) or any and all of the Common Stock
of the Company at a purchase price, gross to the transferee, of not less than
$24.00 per share, subject to the conditions described below.
Section 1.02 The Offer may be made subject only to the Conditions.
The term "Conditions" as used herein means:
(a) that the Company's prior public filings are materially accurate;
(b) that all governmental and other required consents and approvals,
if any, shall have been obtained, including without limitation approvals under
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended;
(c) the execution on terms satisfactory to the Bidder of the ▇▇▇▇▇▇▇
Agreement;
(d) approval of the Offer by the Company's Board of Directors (the
"Board") and, if legally required or if required by the Board or any committee
thereof formed for the purposes of evaluating the Offer, the requisite
percentage of the Company's stockholders; and
(e) such material adverse change condition as may be mutually
agreeable to the Company and Bidder.
ARTICLE II
STOCKHOLDER'S OBLIGATIONS.
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Section 2.01 Subject to the Bidder's delivery of the Offer pursuant
to Article 1 above and the Bidder's continued compliance with the terms and
conditions contained herein, the Stockholder shall, during the Term hereof
(defined below):
(a) advise the Special Committee, the Company's Board of Directors
and ▇▇. ▇▇▇▇▇▇▇ and their respective representatives, of the Stockholder's
support of the Bidder's Offer; and
(b) vote in favor of the Bidder's Offer and against any other
acquisition proposal or other proposals which are inconsistent with or
detrimental to the expeditious consummation of Bidder's Offer.
Section 2.02 In the event the Stockholder sells Shares pursuant to
an Offer made during the Term to the Bidder or a third party pursuant to a
tender offer, merger or other share sale program open generally to all holders
of Common Stock made during the Term (other than ▇▇. ▇▇▇▇▇▇▇, if so elected by
the Bidder) (a "Share Sale") at a price (the "Share Sale Price") above $24.00
per share (which price shall not be reduced or offset by Stockholder's
expenses), the Stockholder will concurrently with the Share Sale pay to the
Bidder, as set forth herein, an amount equal to 20% of the Share Sale Price
above $24.00 per share for each Share sold by the Stockholder in the Share Sale
(the "Premium"); provided that in the event that the Stockholder is entitled to
participate in a Share Sale but elects not to do so, then within 5 days
following
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consummation of such Share Sale, the Stockholder shall pay to the Bidder an
amount equal to the Premium for each Share which the Stockholder elects not to
include in such Share Sale. The Stockholder shall pay to the Bidder, in the
Stockholder's discretion, the Premium (i) in cash, (ii) in Shares, with the
Shares valued at the Share Sale Price, provided that such Shares shall be
delivered to the Bidder with sufficient time to permit the Bidder to participate
in the Share Sale with respect to such Shares (and provided that the Bidder is
entitled to so participate); otherwise the Stockholder will tender such Shares
into the Share Sale on the Bidder's behalf and deliver the proceeds thereof to
the Bidder, or (iii) any combination of (i) or (ii).
Section 2.03 Notwithstanding the foregoing, the Stockholder may
purchase additional shares of Common Stock (which stock shall thereupon be
deemed Shares for purposes of this Agreement) or transfer any or all of the
Shares to one or more persons other than in a Share Sale; provided that no such
transfers shall be made if the effect would be to result in more than 10
stockholders in the aggregate having entered into agreements to support Bidder's
Offer; and further provided, that each such person acquiring Shares shall be
bound by the terms and conditions of this Agreement with respect to the Shares
so acquired; further provided that prior to consummating such transfer, the
Stockholder shall have provided the Bidder with written evidence that each such
person acquiring Shares has agreed to be so bound, along with the name, address
and phone number of each such person; and further provided that Stockholder
shall be responsible for any breach of this Agreement by any such transferee.
Section 2.04 This Agreement shall terminate (the "Term"):
(a) ab initio and be of no effect in the event the Bidder fails to
deliver to the Special Committee notification of Bidder's willingness to
commence the Offer, in accordance with Section 1.01 hereof, on or prior to
January 31, 2005; and
(b) unless extended pursuant to (c) below, April 29, 2005 (the
"Initial Term").
(c) Bidder may request that the Stockholder extend this Agreement
beyond the Initial Term, and the Stockholder shall be obligated to so extend, if
(x) the Bidder, ▇▇. ▇▇▇▇▇▇▇ and the Company are engaged in good faith, bona fide
negotiations and the Bidder reasonably believes that it is likely to negotiate
successfully (i) a definitive agreement with the Company and (ii) the ▇▇▇▇▇▇▇
Agreement or (y) the Bidder wishes and is prepared to pursue such good faith,
bona fide negotiations and has sought and is continuing to seek with ▇▇. ▇▇▇▇▇▇▇
and the Company such good faith, bona fide negotiations, but either or both of
▇▇. ▇▇▇▇▇▇▇ and the Company have refused or failed to respond or negotiate in
good faith. Upon such request and assuming the conditions in (x) or (y) above
are satisfied, the Term of the Agreement shall be extended to the earlier of the
following to occur (the "Extension Term"):
(i) if the Bidder successfully consummates a definitive agreement
with the Company and the ▇▇▇▇▇▇▇ Agreement, the closing date for such
transaction; and
(ii) October 31, 2005.
(d) notwithstanding the forgoing, this Agreement shall automatically
terminate and be of no further effect if the Bidder, in its sole discretion,
withdraws or abandons
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the Offer, in which case the Bidder agrees and covenants to immediately notify
the Stockholder of such withdrawal or abandonment.
(e) In the event that the Bidder wishes and is prepared to pursue
good faith, bona fide negotiations and has sought and is continuing to seek with
▇▇. ▇▇▇▇▇▇▇ and the Company such good faith, bona fide negotiations, but either
or both of ▇▇. ▇▇▇▇▇▇▇ and the Company have refused or failed to respond or
negotiate in good faith, the Stockholder shall use reasonable, good faith
efforts to encourage the Company and ▇▇. ▇▇▇▇▇▇▇ to engage in such negotiations.
Section 2.05 If the Bidder requests that the Stockholder extend the
Term of the Agreement pursuant to Section 2.04(c) above, the Bidder shall
deliver to the Stockholder prior to the expiration of the Initial Term
information regarding (a) the status of the Bidder's good faith, bona fide
negotiations with the Company and ▇▇. ▇▇▇▇▇▇▇ with respect to completion of a
definitive agreement and the ▇▇▇▇▇▇▇ Agreement, (b) the Bidder's intention to
commence the Offer as promptly as practicable and (c) such other information
regarding the Offer and a Share Sale as the Stockholder may reasonably request
in support of the Bidder's representations under Section 2.04(c).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER.
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The Stockholder hereby represents and warrants to the Bidder as of
the date hereof as follows:
Section 3.01 Organization. If the Stockholder is a corporation,
limited liability company or limited partnership, the Stockholder is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization.
Section 3.02 Authorization; Validity of Agreement; Necessary Action.
The Stockholder has all necessary power and authority, and if an individual,
capacity, to execute and deliver this Agreement and to perform his, her or its
obligations hereunder. The execution, delivery and performance of this Agreement
has been duly and validly authorized by all necessary action and no other
proceedings on the part of the Stockholder are necessary to authorize the
execution and delivery of this Agreement. This Agreement has been duly and
validly executed and delivered by the Stockholder, and constitutes the legal,
valid and binding obligation of the Stockholder, enforceable against him, her or
it in accordance with its terms.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BIDDER.
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The Bidder hereby represents and warrants to Stockholder as of the
date hereof as follows:
Section 4.01 Organization. The Bidder is a limited liability company
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
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Section 4.02 Corporate Authorization; Validity of Agreement;
Necessary Action. The Bidder has all necessary corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
execution, delivery and performance by the Bidder of this Agreement and the
consummation by it of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action and no other corporate
proceedings on the part of the Bidder are necessary to authorize the execution
and delivery by it of this Agreement and the consummation by if of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Bidder, and constitutes the legal, valid and
binding obligation of Bidder, enforceable against Bidder in accordance with its
terms.
ARTICLE V
MISCELLANEOUS.
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Section 5.01 Costs and Expenses. All costs and expenses incurred in
connection with this Agreement and the consummation of the transactions
contemplated hereby shall be paid by the party incurring such expenses.
Section 5.02 Amendment and Modification. This Agreement may be
amended, modified or supplemented in any and all respects only by written
agreement of the parties hereto.
Section 5.03 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by an overnight courier service
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as it may specify by like notice):
(a) if to Bidder:
JQH Acquisition LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) if to Stockholder, to:
_______________
_______________
_______________
_______________
with a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Section 5.04 Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. Whenever the words "include," "includes" or
"including" are used in this Agreement they shall be deemed to be followed by
the words "without limitation." The phrases "the date of this Agreement," "the
date hereof," and terms of similar import, unless the context otherwise
requires, shall be deemed to refer to January 31, 2005.
Section 5.05 Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
Section 5.06 Entire Agreement; No Third Party Beneficiaries. This
Agreement and the Confidentiality Agreement, dated as of January 4, 2005,
between Stockholder and/or its affiliates and Bidder and/or its affiliates,
constitute the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof, and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder.
Section 5.07 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party.
All rights, powers and remedies provided under this Agreement or
otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
Section 5.08 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware without giving
effect to the principles of conflicts of law thereof.
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Section 5.09 Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder may be assigned by the parties hereto
(whether by operation of law or otherwise) without the prior written consent of
the other party, provided, however, the Stockholder may as set forth in Section
2.03 above transfer the Shares subject to the acquirer's acquiescence to the
terms of this Agreement and provided, further, the Bidder may assign any or all
of its rights, interests and obligations hereunder to any of its affiliates
provided that no such assignment shall relieve Bidder from any of its
obligations hereunder. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors, heirs, agents, representatives, trust
beneficiaries, attorneys, affiliates and associates and all of their respective
predecessors, successors, permitted assigns, heirs, executors and
administrators.
Section 5.10 Consent to Jurisdiction; Waiver of Jury Trial; Specific
Performance. In any action or proceeding between any of the parties arising out
of or relating to this Agreement or any of the transactions contemplated by this
Agreement, each of the parties: (a) irrevocably and unconditionally consents and
submits to the exclusive jurisdiction and venue of the Chancery Court of the
State of Delaware and the United States District Court for the District of
Delaware and (b) agrees that all claims in respect of such action or proceeding
may be heard and determined exclusively in such courts. For purposes of
implementing the foregoing, Stockholder hereby appoints Corporation Services
Company, and Bidder hereby appoints CT Corporation, as agent to service of
process in the State of Delaware in connection with this Agreement.
Section 5.11 EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING IN
RELATION TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
Section 5.12 No Broker's Fees. No broker, finder, investment banker
or other person is entitled to any broker's, finder's or other fee or commission
in connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of Stockholder.
Section 5.13 Neutral Construction. The language of this Agreement
shall be deemed to be the language mutually chosen by the Stockholders and the
Bidder and no doctrine of construction shall be applied against any party.
Section 5.14 Injunction. The parties acknowledge and agree that
Bidder and Stockholder would be irreparably damaged if any of the provisions of
this Agreement are not performed in accordance with their specific terms and
that any breach of this Agreement could not be adequately compensated in all
cases by monetary damages alone. Accordingly, in addition to any other right or
remedy to which Bidder or Stockholder may be entitled, at law or in equity, it
shall be entitled to enforce any provision of this Agreement by a decree of
specific performance and temporary, preliminary and permanent injunctive relief
to prevent breaches or threatened breaches of any of the provisions of this
Agreement, without posting any bond or other undertaking.
Section 5.15 Acknowledgement. Stockholder and Bidder each
acknowledge that the other may possess material non-public information not known
to the Stockholder
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regarding or relating to the Company or the Common Stock, whether obtained from
the Company under an agreement of confidentiality or otherwise, including, but
not limited to, information concerning the business, financial condition,
results of operations, prospects or plans of the Company or plans for the
Company, and that such information may be material to the value of the Common
Stock; and Stockholder and Bidder each further acknowledge that it has not
requested any such information and agrees that neither party nor its affiliates
shall have any liability whatsoever (and hereby waives and releases all claims
that it may otherwise have) with respect to the non-disclosure of such
information, whether before or after the date of this letter.
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IN WITNESS WHEREOF, Bidder and Stockholder have caused this
Agreement to be signed by their respective officers or other authorized person
thereunto duly authorized as of the date first written above.
STOCKHOLDER
By:
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Name:
Title:
BIDDER
By:
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Name:
Title: