EXHIBIT 10.13
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 Xxxxxx X. Xxxxxxx ("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 Bay Xxxxxxx 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 Operating Company'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 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
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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 Operating Company'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
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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 hereof and, accordingly, the parties hereby consent
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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
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the termination of this Agreement.
Section 3. Term. This Agreement shall commence on the date hereof and shall
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terminate on October 1, 2007.
Section 4. Amendment. This Agreement shall not be amended except upon the
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written consent of the parties hereto.
Section 5. 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 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
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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
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shall not control or affect the meaning or construction of any provision of this
Agreement.
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Section 8. Number; Gender. Whenever the singular number is used herein, the
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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,
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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:
if to Patriot:
Attention: President
Patriot American Hospitality, Inc.
0000 XXX Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
with a copy to:
Xxxxxxx X. Xxxxx, P.C.
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
if to Stockholder:
Xxxxxx X. Xxxxxxx
Wyndham Hotel Corporation
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
with a copy to:
M. Xxxxxxx Xxxxxxxx, Esq.
Xxxxx Xxxxxxx Rain Xxxxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
and Legal Department
Wyndham Hotel Corporation
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
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Section 10. 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 11. 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 provisions thereof.
Section 12. 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 or their respective heirs, successors,
executors, administrators and assigns any rights, remedies, obligations or
liabilities or by reason of this Agreement.
Section 13. 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 and the same instrument.
Section 14. No Presumption Against Draftsman. Each of the parties hereby
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acknowledges that the parties hereto fully negotiated the terms of this
Agreement, that each such party have 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
responsibile for preparing this Agreement or any part hereof.
Section 15. 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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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/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chairman and CEO
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
THE BROOKE XXXXXX XXXXXXX TRUST
By:/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Special Trustee
THE XXXXXXX XXXXXXXX XXXXXXXXX TRUST
By:/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Special Trustee
THE XXXX XXXXXXX XXXXXXX TRUST
By:/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Special Trustee
THE XXXXX XXXXXXXXX XXXXXXXXX TRUST
By:/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Special Trustee
AGREED TO:
PATRIOT AMERICAN HOSPITALITY OPERATING COMPANY
By:/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
Date: July 24, 1997
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