EXHIBIT 10.12
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made as of the 14th day of
April, 1997 by and among Patriot American Hospitality, Inc., a Virginia
corporation ("Patriot") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III ("Stockholder").
RECITALS
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WHEREAS, it is contemplated that Patriot will merge with and into
California Jockey Club, a Delaware corporation ("CJC"; the term "Patriot" shall
mean CJC after such merger) and that Wyndham Hotel Corporation, a Delaware
corporation ("Wyndham"), will thereafter merge with and into Patriot (the
"Merger") pursuant to an Agreement and Plan of Merger dated as of the date
hereof (the "Merger Agreement");
WHEREAS, pursuant to the terms of a Stock Purchase Agreement dated the
date hereof (the "Stock Purchase Agreement") between Patriot and CF Securities,
L.P., a Texas limited partnership ("Family Securities"), Patriot plans to issue,
and upon such issuance Family Securities will be the beneficial owner of, paired
shares (the "Paired Shares") of common stock, par value $.01 per share, of
Patriot and common stock, par value $.01 per share, of Patriot American
Hospitality Operating Company, a Delaware corporation ("OPCO"), and shares of
unpaired preferred stock, par value $.01 per share, of Patriot (the "Unpaired
Shares");
WHEREAS, this Agreement is being entered into by Patriot and
Stockholder as an inducement to Family Securities to enter into the Stock
Purchase Agreement; and
WHEREAS, as a condition to the consummation of the Merger and in
connection with the issuance of Paired Shares and Unpaired Shares pursuant to
the Stock Purchase Agreement and the transactions contemplated by the Merger
Agreement and the Stock Purchase Agreement, Patriot desires that Stockholder
make certain representations, warranties, covenants and agreements with respect
to the voting of the shares of Patriot's and OPCO's voting securities held by
him (the "Voting Securities") on matters which may come before the stockholders
of Patriot and OPCO after the Merger.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Merger Agreement and the Stock Purchase Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
Section 1. Voting Agreement.
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(a) Whenever Family Securities beneficially owns at least 5% of the
Sum (as defined in Section 2 hereof) and there shall be submitted to the
stockholders of Patriot or of OPCO a Designee (as defined in Section 2 hereof)
for election to the Board of Directors of Patriot or of OPCO, as the case may
be, Stockholder hereby agrees to vote, or to cause to be voted, all Voting
Securities then held by Stockholder, whether beneficially or of record, in favor
of such Designee.
(b) Stockholder and Patriot hereby agree that, when and if
Stockholder is in default under its obligations under Section 1(a) above, at the
written request of Family Securities and with no further action required on the
part of Patriot, OPCO or Stockholder, the right to enforce this Section 1 shall
during such period automatically be assigned to, and may be excused by, Family
Securities.
Section 2. Director Nominations. From the date hereof until the first date
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on which Family Securities does not beneficially own at least five percent (5%)
of the lesser of (x) the sum of (i) the number of then outstanding Paired Shares
and (ii) the number of then outstanding Unpaired Shares, or (y) the sum of (i)
the number of Paired Shares outstanding immediately after the Merger and (ii)
the number of Unpaired Shares outstanding immediately after the Merger (the
lesser of (x) and (y) being the "Sum") (provided, however, that in the event the
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Standstill Agreement of even date herewith between Patriot and Family Securities
is no longer in effect, then the Sum shall be (x), irrespective of the number of
shares computed pursuant to (y)), each of Patriot and OPCO hereby agrees, if at
the time thereof ▇▇▇▇▇▇ ▇▇▇▇ or a designee of Family Securities is not a
director of such corporation, (i) to propose as a nominee for election to the
Board of Directors of such corporation a designee of Family Securities (which
need not be the same individual in each case) (a "Designee"), (ii) to include
the name of the applicable Designee as a nominee in its proxy card, (iii) to
recommend the election of the applicable Designee to its stockholders (if any
such recommendation is made by its Board of Directors as to any other nominee),
(iv) to solicit proxies on behalf of the Designee to the same extent proxies are
solicited on behalf of any other nominee for election to the Board of Directors,
and (v) to cause the attorneys-in-fact named in the proxy cards to vote the
shares in respect of which proxies are given for the election of the Designee as
a director unless such proxy cards give contrary instructions.
Section 3. Specific Enforcement. The provisions of this Agreement are to be
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specifically enforced if not performed according to their terms. Without
limiting the generality of the foregoing, the parties hereto acknowledge that
they would be irreparably damaged and there would be no adequate remedy at law
for a breach of Section 1 or Section 2 hereof and, accordingly, the parties
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hereby consent to the entry of any temporary restraining order or preliminary or
ex parte injunction, in addition to any other remedies available at law or in
equity, to enforce the provisions thereof. Any requirements for the securing or
posting of any bond with respect to any such remedy are hereby waived. This
Section 3 shall survive the termination of this Agreement.
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Section 4. Term. This Agreement shall commence on the date hereof and
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shall terminate on October 1, 2007.
Section 5. Amendment. This Agreement shall not be amended except upon the
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written consent of the parties hereto.
Section 6. Jurisdiction and Venue. The parties hereto hereby irrevocably
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and unconditionally consent to and submit to the exclusive jurisdiction of the
courts of the State of Delaware and of the United States of America located in
the State of Delaware for any actions, suits or proceedings arising out of or
relating to this Agreement, the transactions contemplated hereby or any document
referred to herein (and the parties agree not to commence any action, suit or
proceeding relating thereto except in such courts), and further agree that
service of any process, summons, notice or document by U.S. registered mail to
the respective addresses set forth in Section 8 hereof shall be effective
service of process for any such action, suit or proceeding brought against any
party in any such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this agreement or the transactions contemplated hereby, in the courts of the
State of Delaware or the United States of America located in the State of
Delaware, and hereby further irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in any inconvenient forum.
Section 7. Entire Agreement. This Agreement contains the entire
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understanding of the parties with respect to the subject matter hereof and may
be amended only by an agreement in writing executed by the parties hereto.
Section 8. Headings. Descriptive headings are for convenience only and
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shall not control or affect the meaning or construction of any provision of this
Agreement.
Section 9. Number; Gender. Whenever the singular number is used herein,
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the same shall include the plural where appropriate, and words of any gender
shall include each other gender where appropriate.
Section 10. Notices. All notices, consents, requests, instructions,
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approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and sent by
U.S. registered mail, return receipt requested:
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if to Patriot:
Attention: President
Patriot American Hospitality, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, P.C.
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
if to Stockholder:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
c/o Patriot American Hospitality
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C.
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Section 11. Enforceability. If any term, provision, covenant or
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restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties hereto that the
parties would have executed the remaining terms, provisions, covenants and
restrictions without including any of such which may be hereafter declared
invalid, void or unenforceable. In addition, the parties hereto agree to use
their best efforts to agree upon and substitute a valid and enforceable term,
provision, covenant or restriction for any of such that is held invalid, void or
unenforceable by a court of competent jurisdiction.
Section 12. Law Governing. This Agreement shall be governed by and
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construed and enforced in accordance with the laws of the State of Delaware,
without regard to any conflict of laws provision thereof.
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Section 13. Binding Effect. This Agreement shall be binding upon and
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inure to the benefit of and be enforceable by the successors and assigns of the
parties hereto, including OPCO from the date it executes this Agreement.
Nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto (and, pursuant to Section 1(b) hereof,
Family Securities) or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
Section 14. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 15. No Presumption Against Draftsman. Each of the parties hereto
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hereby acknowledges that the parties hereto fully negotiated the terms of this
Agreement, that each such party had an equal opportunity to influence the
drafting of the language contained in this Agreement and that there shall be no
presumption against any such party on the ground that such party was responsible
for preparing this Agreement or any part hereof.
Section 16. Effective Date. This Agreement shall become effective when
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and if the Merger becomes effective.
[END OF TEXT]
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{Signature Page to Voting Agreement}
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement,
or caused the same to be executed, under seal, individually or by its duly
authorized representative, as of the date first above written.
PATRIOT AMERICAN HOSPITALITY,INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and CEO
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
AGREED TO:
PATRIOT AMERICAN HOSPITALITY OPERATING COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
Date: July 24, 1997
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