<PAGE>
As filed with the Securities and Exchange Commission on June 1, 1999
Registration Statement No. 333- 79527-01
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE
AMENDMENT NO. 1 TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WYNDHAM INTERNATIONAL, INC.
(Exact name of Registrant as specified in its Charter)
DELAWARE
(State or Other Jurisdiction of Organization)
7948
(Primary Standard Industrial Classification Code)
94-2878485
(I.R.S. Employer Identification No.)
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
(214) 863-1000
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Office)
JAMES D. CARREKER
Chairman of the Board and Chief Executive Officer
WYNDHAM INTERNATIONAL, INC.
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
(214) 863-1000
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent for Service)
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Copies to:
GILBERT G. MENNA, P.C. RANDALL H. DOUD, ESQ.
KATHRYN I. MURTAGH, ESQ. Skadden, Arps, Slate, Meagher & Flom LLP
Goodwin, Procter & Hoar llp 919 Third Avenue
Exchange Place New York, NY 10022
Boston, MA 02109-2881 (212) 735-3000
(617) 570-1000
Approximate date of commencement of proposed sale to the public: Upon
completion of the merger of Patriot American Hospitality, Inc. with and into a
subsidiary of Wyndham International, Inc. pursuant to an Agreement and Plan of
Merger between Patriot and Wyndham described in the enclosed Joint Proxy
Statement and Prospectus.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until this Registration Statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a corporation
to indemnify its directors, officers, employees and agents against certain
liabilities they may incur in such capacities, including liabilities under the
Securities Act of 1933, provided they act in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
corporation. Wyndham's certificate of incorporation and bylaws require Wyndham
to indemnify its officers and directors to the full extent permitted by
Delaware law.
Section 102 of the Delaware General Corporation Law authorizes a corporation
to limit or eliminate its directors' liability to the corporation or its
stockholders for monetary damages for breaches of fiduciary duties, other than
for (a) breaches of the duty of loyalty, (b) acts or omissions involving bad
faith, intentional misconduct or knowing violations of the law, (c) unlawful
payments of dividends, stock purchases or redemptions, or (d) transactions from
which a director derives an improper personal benefit. Wyndham's certificate of
incorporation contains provisions limiting the liability of the directors to
Wyndham and to its stockholders to the full extent permitted by Delaware law.
Section 145 of the Delaware General Corporation Law authorizes a corporation
to purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation against any liability
asserted against him and incurred by him or her in any such capacity, or
arising out of his or her status as such. Wyndham's certificate of
incorporation and bylaws provide that Wyndham may, to the full extent permitted
by law, purchase and maintain insurance on behalf of any director, officer,
employee or agent of Wyndham against any liability that may be asserted against
him or her, and Wyndham currently maintains such insurance. Wyndham currently
has $75 million of liability insurance covering its directors and officers for
claims asserted against them or incurred by them in such capacity, including
claims brought under the Securities Act.
ITEM 21. Exhibits and Financial Statement Schedules.
(a) Exhibits
<TABLE>
<CAPTION>
Number Description
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<C> <S>
*2.1 Securities Purchase Agreement dated as of February 18, 1999 by and
among Patriot American Hospitality, Inc. ("Patriot"), Wyndham
International, Inc. ("Wyndham"), Patriot American Hospitality
Partnership, L.P., Wyndham International Operating Partnership, L.P.
and the Investors named therein, attached as Annex A to the Joint Proxy
Statement/Prospectus included in Part I of this Registration Statement
and incorporated herein by reference. Wyndham hereby undertakes to
furnish supplementally to the Commission upon request a copy of any
omitted schedule or exhibit to the Securities Purchase Agreement.
*2.2 Restructuring Plan, attached as Annex B to the Joint Proxy
Statement/Prospectus included in Part I of this Registration Statement
and incorporated herein by reference.
*2.3 Agreement and Plan of Merger, dated as of March 26, 1999, by and among
Wyndham, Wyndham International Acquisition Subsidiary, Inc. and
Patriot, attached as Annex F to the Joint Proxy Statement/Prospectus
included in Part I of this Registration Statement and incorporated
herein by reference.
3.1 Amended and Restated Certificate of Incorporation of Wyndham,
incorporated by reference to Exhibit 3.3 to Patriot's and Wyndham's
Registration Statement on Form S-4 filed January 13, 1998 (Nos. 333-
44203 and 333-44203-01).
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
*3.2 Form of Amendment to the Amended and Restated Certificate of
Incorporation of Wyndham to effect a reverse stock split, attached as
Annex G to the Joint Proxy Statement/Prospectus included in Part I of
this Registration Statement and incorporated herein by reference.
*3.3 Form of Restated Certificate of Incorporation of Wyndham, attached as
Annex C to the Joint Proxy Statement/Prospectus included in Part I of
this Registration Statement and incorporated herein by reference.
3.4 Amended and Restated Bylaws of Wyndham, incorporated by reference to
Exhibit 3.4 to Wyndham's and Patriot's Annual Report on Form 10-K, as
amended, for the fiscal year ended December 31, 1998.
3.5 Form of Amended and Restated Bylaws of Wyndham, incorporated by
reference to Exhibit 99.4 to Wyndham's and Patriot's Current Report on
Form 8-K dated March 2, 1999 (filed March 2, 1999).
3.6 Amended and Restated Certificate of Incorporation of Patriot,
incorporated by reference to Exhibit 3.1 to Patriot's and Wyndham's
Registration Statement on Form S-4 filed January 13, 1998
(Nos. 333-44203 and 333-44203-01).
*3.7 Form of Amendment to the Amended and Restated Certificate of
Incorporation of Patriot to effect a reverse stock split, attached as
Annex H to the Joint Proxy Statement/Prospectus included in Part I of
this Registration Statement and incorporated herein by reference.
3.8 Amended and Restated Bylaws of Patriot, incorporated by reference to
Exhibit 3.3 to Wyndham's and Patriot's Annual Report on Form 10-K, as
amended, for the fiscal year ended December 31, 1998.
4.1 Form of Certificate of Designation of Series A Convertible Stock of
Wyndham, incorporated by reference to Exhibit 99.5 to Wyndham's and
Patriot's Current Report on Form 8-K dated March 2, 1999 (filed March
2, 1999).
*4.2 Form of Certificate of Designation of Series B Convertible Preferred
Stock of Wyndham, attached as Annex D to the Joint Proxy
Statement/Prospectus included in Part I of this Registration Statement
and incorporated herein by reference.
4.3 Agreement (the "Pairing Agreement"), dated February 15, 1983 and as
amended February 18, 1988, between Bay Meadows Operating Company and
California Jockey Club (formerly Bay Meadows Realty Enterprises, Inc.),
as amended, incorporated by reference to Exhibit 4.3 to Cal Jockey's
and Bay Meadow's Registration Statement on Form S-2, and to Exhibit 4.2
to Cal Jockey's and Bay Meadow's Annual Report on Form 10-K for the
year ended December 31, 1987 (Nos. 001-09319 and 001-09320).
4.4 Amendment No. 2 to the Pairing Agreement, incorporated by reference to
Exhibit 4.2 to Patriot's and Wyndham's Registration Statement on Form
S-4 filed November 10, 1997 (No. 333-39875 and 333-39875-01).
4.5 Amendment No. 3 to the Pairing Agreement, incorporated by reference to
Exhibit 4.3 to Patriot's and Wyndham's Registration Statement on Form
S-4/A filed February 13, 1998 (Nos. 333-44203 and 333-44203-01).
*5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being offered by Wyndham.
+8.1 Opinion of Goodwin, Procter & Hoar LLP regarding tax consequences of
the merger, the preferred stock exchange and certain other related
transactions.
*10.1 Form of Transaction Support Agreement.
10.2 Amendment and Restatement of Credit Agreement, dated as of January 31,
1999 by and among Patriot, Patriot American Hospitality Partnership,
L.P. and the Lenders named therein, incorporated by reference to
Exhibit 99.1 to Wyndham's and Patriot's Current Report on Form 8-K
dated January 29, 1999 (filed February 4, 1999).
10.3 Letter Agreement, dated February 26, 1999, by and among Wyndham,
Patriot and Paul A. Nussbaum, incorporated by reference to Exhibit 99.1
to Wyndham's and Patriot's Current Report on Form 8-K dated February
26, 1999 (filed March 3, 1999).
</TABLE>
II-2
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<TABLE>
<CAPTION>
Number Description
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<C> <S>
12.1 Historical Ratio of Earnings to Fixed Charges incorporated by reference
to Exhibit 12.1 to Wyndham's and Patriot's Annual Report on Form 10-K,
as amended, for the fiscal year ended December 31, 1998.
21.1 Subsidiaries of Wyndham and Patriot, incorporated by reference to
Exhibit 21.1 to Wyndham's and Patriot's Annual Report on Form 10-K, as
amended, for the fiscal year ended December 31, 1998.
*23.1 Consent of Goodwin, Procter & Hoar llp (included in Exhibit 5.1).
*23.2 Consent of Morgan Stanley & Co. Incorporated.
*23.3 Consent of Ernst & Young LLP (Dallas).
*23.4 Consent of Ernst & Young LLP (San Juan, Puerto Rico).
*23.5 Consent of Ernst & Young LLP (Wichita, Kansas).
*23.6 Consent of PricewaterhouseCoopers (Pittsburgh, Pennsylvania).
*23.7 Consent of PricewaterhouseCoopers (Tampa, Florida).
*23.8 Consent of PricewaterhouseCoopers (Miami, Florida).
*23.9 Consent of PricewaterhouseCoopers (Dallas, Texas).
*23.10 Consent of Arthur Andersen (London, United Kingdom).
*23.11 Consent of Chase Securities Inc.
*99.1 Form of Wyndham Proxy.
*99.2 Form of Patriot Proxy.
*99.3 Form of Letter of Transmittal--Merger Exchange.
*99.4 Form of Letter of Transmittal--Preferred Stock Exchange Offer.
*99.5 Form of Director Nominee Consent.
</TABLE>
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* Previously filed on this Form S-4
+ Filed herewith
(b) Financial Statement Schedules
None
(c) Item 4(b) Information
The opinions of Morgan Stanley & Co. Incorporated and Chase Securities Inc.
are included as Annex E and Annex J, respectively, to the Joint Proxy
Statement/Prospectus included in Part I of this Registration Statement.
ITEM 22. Undertakings.
The undersigned registrant hereby undertakes:
(a) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
II-3
<PAGE>
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
(c) The undersigned registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus
pursuant to Item 4, 10(b), 11 or 13 of this form, within one business day
of receipt of such request, and to send the incorporated documents by first
class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Dallas, State of Texas on June 1, 1999.
Wyndham International, Inc.
/s/ James D. Carreker
By: _________________________________
James D. Carreker
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman and Chief June 1, 1999
______________________________________ Executive Officer
James D. Carreker (Principal Executive
Officer)
* Chief Financial Officer June 1, 1999
______________________________________ (Principal Financial
Anne L. Raymond Officer and Principal
Accounting Officer)
* Director June 1, 1999
______________________________________
Karim Alibhai
* Director June 1, 1999
______________________________________
Leonard Boxer
* Director June 1, 1999
______________________________________
Burton C. Einspruch, M.D.
* Director June 1, 1999
______________________________________
Susan T. Groenteman
* Director June 1, 1999
______________________________________
Arch K. Jacobson
Director June 1, 1999
______________________________________
James C. Leslie
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
</TABLE>
<TABLE>
<S> <C> <C>
* Director June 1, 1999
______________________________________
Paul A. Nussbaum
* Director June 1, 1999
______________________________________
Rolf E. Ruhfus III
* Director June 1, 1999
______________________________________
Sherwood Weiser
</TABLE>
*By: James D. Carreker
Attorney-in-fact
II-6
<PAGE>
EXHIBIT 8.1
June 1, 1999
Wyndham International, Inc.
1950 Stemmons Freeway, Suite 6001
Dallas, TX 75207
Patriot American Hospitality, Inc.
1950 Stemmons Freeway, Suite 6001
Dallas, TX 75207
Re: The Restructuring of Wyndham International, Inc., and Patriot American
Hospitality, Inc.
Ladies and Gentlemen:
This opinion is delivered to you in our capacity as counsel to Wyndham
International, Inc., a Delaware corporation ("Wyndham"), and Patriot American
Hospitality, Inc., a Delaware corporation ("Patriot"), in connection with the
issuance of a new series of preferred stock of Wyndham to investors including
affiliates of each of Apollo Real Estate Management III, L.P., Apollo Management
IV, L.P., Thomas H. Lee Equity Fund IV, L.P., Beacon Capital Partners, L.P., and
Strategic Real Estate Investments I, LLC (the "Investment") and the related
restructuring of Wyndham and Patriot (the "Restructuring"), including the
exchange by certain holders of Wyndham preferred stock of their preferred stock
for Wyndham Class A common stock (the "Preferred Stock Exchange"), the reverse
stock split undertaken by Wyndham and Patriot with respect to their paired
shares (the "Reverse Stock Split"), the merger of a newly created, wholly owned
subsidiary of Wyndham into Patriot with Patriot as the surviving corporation
(the "Merger"), the contribution of interests in Wyndham International Operating
Partnership, L.P. and/or Patriot American Hospitality Partnership, L.P. (the
"Operating Partnerships"), by certain holders of such interests, to Wyndham in
exchange for Wyndham common stock (the "OP Unit Exchange"), and the transaction,
which
<PAGE>
Wyndham International, Inc.
Patriot American Hospitality, Inc.
June 1, 1999
Page 2
may occur under certain circumstances, in which Wyndham common stock is
exchanged for the stock of the subsidiaries specified in paragraph 6 of Exhibit
A of the securities purchase agreement for the Investment (the "Securities
Purchase Agreement") held by certain partners of Patriot American Hospitality
Partnership, L.P. (the "D-Sub Stock Exchange"), all as more fully described in
the proxy statement, as amended, filed with the Securities and Exchange
Commission pursuant to Section 14(a) of the Securities and Exchange Act of 1934
in connection with the Investment and Restructuring (the "Proxy"). The
Investment and the Restructuring are referred to collectively as the
"Transactions."
This opinion relates to the qualification of the Preferred Stock Exchange
as a reorganization under Section 368(a)(1)(E) of the Internal Revenue Code of
1986, as amended (the "Code"), the taxation of the Reverse Stock Split to
holders of paired shares, and the qualification of the Merger, the OP Unit
Exchange and the D-Sub Stock Exchange (if it occurs) for treatment under Code
Section 351.
For purposes of this opinion, we have reviewed and relied upon the
Securities Purchase Agreement and the exhibits thereto, the Proxy and the
exhibits thereto, the charters of Wyndham and Patriot as currently in effect,
and the limited partnership agreements of the Operating Partnerships as
currently in effect (the "Documents"). In addition, in rendering our opinion we
have relied upon certain statements, factual representations and warranties made
by Wyndham and Patriot set forth in a representation letter provided to us by
Wyndham and Patriot in connection with the preparation of this opinion. We have
assumed that such statements, representations and warranties are true, correct,
complete and not breached and will continue to be so through the completion of
the Transactions, that no actions that are inconsistent with such statements,
representations and warranties will be taken, and that all statements,
representations and warranties made to "the best knowledge of" any person or
with similar qualification are and will be true, correct and complete as if made
without such qualification.
We also have assumed (i) the genuineness of all signatures, (ii) the
authenticity of all documents submitted to us as originals, (iii) the conformity
to the original documents of all documents submitted to us as copies, (iv) the
authority and capacity of the individual or individuals who executed any such
documents on behalf of any person, (v) the conformity to the final documents of
all documents submitted to us as drafts, and (vi) the accuracy and completeness
of all records made available to us. In addition, we have assumed (i) each of
the
<PAGE>
Wyndham International, Inc.
Patriot American Hospitality, Inc.
June 1, 1999
Page 3
proposals submitted to the stockholders of Wyndham and/or Patriot pursuant to
the Proxy will be approved by stockholders, (ii) the Transactions will be
consummated in accordance with the Documents, as described in the Proxy and
without the occurrence of any condition or other provision or the waiver of a
condition or other provision that would adversely affect our opinion, (iii)
Wyndham and Patriot will each comply with the reporting obligations with respect
to the Transactions required under the Code and the Treasury Regulations
thereunder, (iv) the Documents are valid and binding in accordance with their
terms, and (v) none of the persons who receive stock of Wyndham pursuant to the
Investment, the Merger, the OP Unit Exchange or the D-Sub Exchange (the
"Transferors") has or will have a plan or intention or has entered or will enter
into a binding agreement to sell shares of Wyndham that would cause the
Transferors to lose "control" of Wyndham within the meaning of Code Section
368(c) (and such assumption would continue to be true if the Transferors were
deemed to include any persons who acquire preferred stock of Wyndham upon
exercise of certain transferable stock rights proposed to be issued following
the Transactions, as described in the Proxy).
Any inaccuracy in, or breach of, any of the aforementioned statements,
representations, warranties and assumptions or any change after the date hereof
in applicable law could adversely affect our opinion. No ruling has been or
will be sought from the Internal Revenue Service by Wyndham or Patriot as to the
federal income tax consequences of any aspect of the Transactions.
For purposes of this opinion, the term "U.S. Person" means a person
described in Code Section 7701(a)(30) that is not subject to special treatment
under the Code with respect to its participation in the Transactions.
Based upon and subject to the foregoing, as well as the limitations set
forth below, it is our opinion, under presently applicable federal income tax
law, that:
(1) the Preferred Stock Exchange will qualify as a reorganization within
the meaning of Code Section 368(a)(1)(E);
(2) holders of paired shares will not recognize gain or loss as a result
of the Reverse Stock Split;
(3) the recognition of gain or loss upon the exchange of all of the
Patriot common stock and preferred stock for Wyndham common stock and
cash pursuant to the Merger; the exchange of interests in Wyndham
International Operating Partnership, L.P. for Wyndham common stock and
cash and the exchange of interests in Patriot American Hospitality
Partnership, L.P. for Wyndham common stock and cash pursuant to the OP
Unit
<PAGE>
Wyndham International, Inc.
Patriot American Hospitality, Inc.
June 1, 1999
Page 4
Exchange; and the exchange of the stock of the subsidiaries specified
in paragraph 6 of Exhibit A of the Securities Purchase Agreement for
Wyndham common stock pursuant to the D-Sub Stock Exchange (if it
occurs) by U.S. Persons that participate in such exchanges will be
governed by Code Section 351(a) and (b), except as otherwise required
by Code Sections 304, 357(c) and 751(a) and except in the case of
persons who receive only cash and no stock of Wyndham in such
exchanges; and
(4) the discussion set forth in the Proxy under the heading "Federal
Income Tax Consequences," to the extent that it constitutes statements
of, or legal conclusions regarding, federal income tax law, is
accurate in all material respects.
* * *
No opinion is expressed as to any matter not specifically addressed above.
Also, no opinion is expressed as to the tax consequences of the Transactions
under any foreign, state or local tax law. Furthermore, our opinion is based on
current federal income tax law and administrative practice, and we do not
undertake to advise you as to any changes after the date hereof in federal
income tax law or administrative practice that may affect our opinion.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
Goodwin, Procter & Hoar LLP
