EXHIBIT 10.16
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 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Stockholder").
RECITALS
--------
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 Bay ▇▇▇▇▇▇▇ Operating
Company, a Delaware corporation ("OPCO"), and share 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
her (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 hereof 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. Whenever there shall be submitted to the
----------------
stockholders of Patriot or of OPCO nominees 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 nominees
designated by Patriot or OPCO or Patriot's or OPCO's Boards of Directors, as
the case may be, and unless otherwise requested by Patriot or OPCO, as the case
may be, against any other nominees.
Section 2. Specific Enforcement. The provisions of this Agreement are to be
--------------------
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 hereof and, accordingly, the parties hereby consent
---------
to the entry of any temporary restraining order 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 2 shall survive
---------
the termination of this Agreement.
Section 3. Term. This Agreement shall commence on the date hereof and shall
----
terminate on October 1, 2007.
Section 4. Amendment. This Agreement shall not be amended except upon the
---------
written consent of the parties hereto.
Section 5. Jurisdiction and Venue. The parties hereto hereby irrevocably
----------------------
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 hereof (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 the 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 6. Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties with respect to the subject matter herein and may
be amended only by an agreement in writing executed by the parties hereto.
Section 7. Headings. Descriptive headings are for convenience only and
--------
shall not control or affect the meaning or construction of any provision of this
Agreement.
2
Section 8. Number; Gender. Whenever the singular number is used herein, the
--------------
same shall include the plural where appropriate, and words of any gender shall
include each other gender where appropriate.
Section 9. Notices. All notices, consents, requests, instructions,
-------
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:
if to Patriot:
Attention: President
Patriot American Hospitality, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C.
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
if to Stockholder:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Hotel Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Rain ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
and Legal Department
Wyndham Hotel Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
3
Section 10. Enforceability. If any term, provision, covenant or 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 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 11. Law Governing. This Agreement shall be governed by and
-------------
construed and enforced in accordance with the laws of the State of Delaware,
without regard to any conflict of law provisions thereof.
Section 12. Binding Effect. This Agreement shall be binding upon and inure
--------------
to the benefit of and 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 or their respective heirs, successors, executors,
administrators and assigns any right, remedies, obligations or liabilities under
or by reason of this Agreement.
Section 13. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but of which together
shall constitute one and the same instrument.
Section 14. No Presumption Against Draftman. Each of the parties hereto
-------------------------------
acknowledges that the parties hereto full 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 15. Effective Date. This Agreement shall become effective when and
--------------
if the Merger becomes effective.
[END OF TEXT]
4
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman & Chief Executive Officer
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
AGREED TO:
PATRIOT AMERICAN HOSPITALITY OPERATING COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
Date: July 24, 1997
-------------------------------