EXHIBIT 10.41
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement"), is entered into as of September
30, 1997, by and between Patriot American Hospitality Operating Company, a
Delaware corporation ("OpCo"), and the stockholder of CHC International, Inc.
("CHCI") signatory hereto (the "Stockholder").
W I T N E S S E T H
WHEREAS, as of the date hereof the Stockholder is the record owner of, and
has full rights to vote, that number of shares of common stock of CHCI, par
value $.01 per share (the "CHCI Stock"), set forth opposite his, her or its
name, as the case may be, on Exhibit A hereto (the "Shares");
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WHEREAS, OpCo, Patriot American Hospitality, Inc. and CHCI are entering
into an Agreement and Plan of Merger, dated as of the date hereof (as the same
may be amended from time to time, the "Merger Agreement"), which provides, upon
the terms and subject to the conditions thereof, for the merger of CHCI with and
into OpCo (the "Merger") such that, upon consummation of the Merger, OpCo shall
continue as the surviving corporation and CHCI will cease to exist;
WHEREAS, as a condition to the willingness of OpCo to enter into the Merger
Agreement, OpCo has requested that the Stockholder agree, and, in order to
induce OpCo to enter into the Merger Agreement the Stockholder is willing to
agree, to vote the Shares pursuant to the terms and conditions hereof; and
WHEREAS, as a further condition of the willingness of OpCo to enter into
the Merger Agreement, OpCo has requested that the other stockholders listed on
Exhibit A hereto, who together with the Stockholder comprise record owners
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having full rights in the aggregate to vote more than 50% of the shares of CHCI
Stock issued and outstanding as of the date hereof, enter into agreements in
substantially the same form as this Agreement regarding the voting of their
shares of CHCI Stock.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
The Stockholder hereby represents and warrants to OpCo as follows:
SECTION 1.01. Due Authority. The Stockholder has full power and authority
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to execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement has been duly executed and delivered by or on behalf of the
Stockholder.
SECTION 1.02. No Conflict; Consents. The execution and delivery of this
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Agreement by the Stockholder do not, and the performance by the Stockholder of
the obligations under this Agreement and the compliance by the Stockholder with
any provisions hereof do not and will not, (i) conflict with or violate any law,
statute, rule, regulation, order, writ, judgment or decree applicable to the
Stockholder or the Shares, (ii) conflict with or violate the Stockholder's
charter, bylaws, partnership agreement or other organizational documents, if
applicable, or (iii) result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Stockholder's Shares pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
the Shares are bound.
SECTION 1.03. Title to Shares.
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(a) The Stockholder is the record owner of and has full rights to
vote the Shares, free and clear of any proxy or voting restriction. The Shares
set forth opposite the Stockholder's name on Exhibit A hereto, together with the
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shares of CHCI Stock set forth opposite the names of the other stockholders
listed on Exhibit A, constitute more than 50% of the issued and outstanding
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voting stock of CHCI as of the date hereof.
(b) The Stockholder has, and during the Term (as hereinafter defined)
will have (except as a result of transfers permitted by Section 2.01), sole
voting power with respect to the matters set forth in Article II hereof with
respect to all of the Shares and sole power of disposition with respect to all
of the Shares, subject to the restrictions described on Exhibit B (the "Existing
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Restrictions").
SECTION 1.04. No Encumbrances. The Shares and the certificates
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representing the Shares are now, and at all times during the Term hereof (except
as a result of transfers permitted by Section 2.01) will be, held by the
Stockholder, or by a custodian for the benefit of the Stockholder, free and
clear of all proxies, voting trusts and voting agreements, understandings or
arrangements providing for any right on the part of any person other than the
Stockholder to vote the Shares and, subject to the Existing Restrictions and
replacements thereof in accordance with Section 2.01, free and clear of all
liens, claims, security interests and any other encumbrances whatsoever except
any such encumbrances or arrangements arising under this Agreement.
SECTION 1.05. Acknowledgment of Reliance. The Stockholder understands and
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acknowledges that (a) OpCo is entering into the Merger Agreement in reliance
upon the Stockholder's execution and delivery of this Agreement and (b) this
Agreement is intended to be enforceable against the Stockholder and,
accordingly, the Stockholder will not challenge or question the validity or
enforceability of any of the terms of this Agreement.
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ARTICLE II
CERTAIN COVENANTS OF THE STOCKHOLDER
The Stockholder hereby covenants and agrees with OpCo as follows:
SECTION 2.01. Transfer of Shares. During the Term, the Stockholder shall
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not directly or indirectly exchange, deliver, assign, pledge, encumber or
otherwise transfer or dispose of any of the Shares (including options in respect
thereof), nor shall the Stockholder directly or indirectly grant any right of
any kind to acquire, dispose of, vote or otherwise control in any manner any of
the Shares; provided, that (a) a transfer to the executor or administrator of
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the Stockholder upon the Stockholder's death shall not be deemed prohibited
hereunder as long as such executor or administrator on behalf of the estate of
the Stockholder shall be bound by all of the provisions of this Agreement to the
same extent as the Stockholder; and (b) replacements of an Existing Restriction
on terms which are not substantially more onerous and that do not adversely
affect the Stockholder's voting obligations under this Agreement shall not be
deemed prohibited hereunder.
SECTION 2.02. Voting of Shares; Further Assurances.
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(a) The Stockholder hereby unconditionally agrees to vote each of the
Shares at every meeting of the stockholders of CHCI or any adjournment thereof
or in connection with any written consent of CHCI's stockholders, (i) in favor
of the adoption of the Merger Agreement and approval of the Merger and the other
transactions contemplated thereby, (ii) against any other proposal or offer from
any person relating to any acquisition or purchase of all or a portion of the
assets of, or any equity interest in, CHCI or the CHCI Subsidiaries (other than
the Spin Off), or any merger or business combination with CHCI or the CHCI
Subsidiaries other than the Merger, (iii) against any proposal for any action or
agreement that would result in any of the conditions of CHCI's obligations under
the Merger Agreement not being fulfilled and (iv) in favor of any other matter
necessary for consummation of the transactions contemplated by the Merger
Agreement which is considered at any such meeting of stockholders of CHCI or in
such consent, and in connection therewith to execute any documents which are
necessary or appropriate in order to effectuate the foregoing.
(b) For the purposes of this Agreement, "Term" shall mean the period
from the execution of the Merger Agreement until the earliest of (i) the
termination of the Merger Agreement in accordance with the terms thereof or (ii)
the Effective Time (as defined in the Merger Agreement).
(c) Except as permitted in Section 2.01, the Stockholder agrees that
such Stockholder will not enter into any agreement or understanding with any
person or entity or take any action during the Term which will permit any person
or entity to vote or give instructions to vote his, her or its Shares in any
manner inconsistent with the terms of this Section 2.02.
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(d) The Stockholder agrees that he, she or it, as the case may be,
will not (i) demand an appraisal of the Stockholder's Shares or perfect any
dissenter's rights pursuant to Section 607 or any other provision of the FBCA or
any other applicable law in connection with the Spin Off, the Merger, or any
other transaction contemplated herein or in the Merger Agreement.
SECTION 2.03. Certain Events. The Stockholder agrees that this Agreement
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and the obligations hereunder shall attach to the Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of the Shares
shall pass, whether by operation of law or otherwise, including without
limitation, if applicable, the Stockholder's heirs, guardians, administrators or
successors.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. Severability. If any term or other provision of this
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Agreement is determined to be 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. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall cooperate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
extent possible.
SECTION 3.02. Entire Agreement. This Agreement constitutes the entire
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agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
SECTION 3.03. Amendments. This Agreement may not be modified, amended,
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waived, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties hereto.
SECTION 3.04. Assignment. This Agreement shall not be assigned, by
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operation of law or otherwise, except in accordance with Section 2.01 hereof.
SECTION 3.05. Parties in Interest. This Agreement shall be binding upon
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and inure solely to the benefit of each party hereto and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
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SECTION 3.06. Specific Performance. The parties hereto agree that
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irreparable damage will occur in the event that any provision of this Agreement
is not performed in accordance with the terms hereof or is otherwise breached.
It is accordingly agreed that the parties shall be entitled to specific relief
hereunder, including, without limitation, an injunction or injunctions to
prevent and enjoin breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof, in any state or federal court in
the State of Delaware, in addition to any other remedy to which they may be
entitled at law or in equity. Any requirements for the securing or posting of
any bond with respect to any such remedy are hereby waived.
SECTION 3.07. Governing Law; Jurisdiction and Venue. This Agreement shall
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be governed by, and construed in accordance with, the internal laws of the State
of Florida without regard to its rules of conflict of laws. 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 such state (the "Delaware Courts") for any litigation arising
out of or relating to this Agreement and the transactions contemplated hereby
(and agrees not to commence any litigation relating thereto except in such
courts), waive any objection to the laying of venue of any such litigation in
the Delaware Courts and agree not to plead or claim in any Delaware Court that
such litigation brought therein has been brought in any inconvenient forum.
SECTION 3.08. Counterparts. This Agreement may be executed in one or more
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counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 3.09. Definitions. Terms used in this Agreement and not otherwise
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defined herein shall have the meanings set forth in the Merger Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
PATRIOT AMERICAN HOSPITALITY
OPERATING COMPANY
By: /s/ Xxxxxx Xx
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Name: Xxxxxx Xx
Title: Senior Vice President
STOCKHOLDER:
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
STOCKHOLDER:
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
STOCKHOLDER:
Carnival Corporation
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice Chairman
