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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PATRIOT AMERICAN HOSPITALITY, INC.
(Exact Name of Registrant as Specified in its Charter)
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<S> <C>
DELAWARE 94-0358820
(State of Incorporation or Organization) (I.R.S. Employer Identification no.)
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<S> <C>
1950 STEMMONS FREEWAY, SUITE 6001,
DALLAS, TX 75207
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
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<S> <C>
If this form relates to the registration of a If this form relates to the registration of a
class of securities pursuant to Section 12(b) class of securities pursuant to Section 12(g)
of the Exchange Act and is effective pursuant of the Exchange Act and is effective pursuant
to General Instruction A.(c), please check to General Instruction A.(d), please check
the following box. /X/ the following box. / /
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<S> <C>
Securities Act registration statement file number to which this form relates: NOT APPLICABLE
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(If applicable)
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
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<S> <C>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
Series B Cumulative Perpetual Preferred Stock New York Stock Exchange
</TABLE>
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
NOT APPLICABLE
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(Title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
DESCRIPTION OF SERIES B CUMULATIVE PERPETUAL PREFERRED STOCK
On December 22, 1998, Patriot American Hospitality, Inc. ("Patriot" or the
"Corporation"), whose shares are paired and trade as a single unit with those of
Wyndham International, Inc. ("Wyndham" and, with Patriot, the "Companies"),
announced that its Board of Directors declared a stock dividend of $0.44 cents
per share of paired common stock of the Companies ("Paired Shares") for the
fourth quarter ended December 31, 1998 (the "Dividend"). The Dividend is payable
on January 25, 1999 to stockholders of record on December 30, 1998. Each
stockholder received the option to receive the Dividend in the form of
additional Paired Shares or shares of Series B Cumulative Perpetual Preferred
Stock, par value $.01 per share, of Patriot ("Series B Preferred Stock"). The
following description of the terms of the Series B Preferred Stock does not
purport to be complete and is subject to, and qualified in its entirety by
reference to the Certificate of Designation for the Series B Cumulative
Perpetual Preferred Stock of Patriot American Hospitality, Inc. (the
"Certificate of Designation") which is attached hereto as an exhibit and is
incorporated herein by reference.
DIVIDEND RIGHTS
The holders of Series B Preferred Stock shall be entitled to receive, when,
as and if declared by the Corporation's Board of Directors out of funds legally
available for the payment of dividends, cumulative preferential cash dividends
per share at the rate of 15% on the stated value of $25.00 per share per annum.
The Series B Preferred Stock shall, with respect to dividend rights, rank
(a) senior to the Series A Convertible Preferred Stock of the Corporation, (b)
senior to the Series X Junior Participating Cumulative Preferred Stock of the
Corporation, (c) senior to all classes or series of the Corporation Common Stock
and to all other equity securities the terms of which specifically provide that
such equity securities rank either on a parity with the Corporation Common stock
or junior to the Series B Preferred Stock with respect to the payment of
dividends, (d) on a parity with all equity securities issued by the Corporation
the terms of which specifically provide that such equity securities rank on a
parity with the Series B Preferred Stock with respect to the payment of
dividends, and (e) junior to all other equity securities issued by the
Corporation.
No dividends will be declared or paid or set apart for payment on any stock
of the Corporation, upon the Corporation Common Stock, or any other stock of the
Corporation ranking junior to or on a parity with the Series B Preferred Stock
as to dividends or upon liquidation, or any other series of preferred stock
ranking, as to dividends, on a parity with or junior to the Series B Preferred
Stock (other than a dividend in shares of the Corporation's Common Stock or in
any other class of stock ranking junior to the Series B Preferred Stock as to
dividends and upon liquidation) for any period unless full cumulative dividends
have been or contemporaneously are declared and paid on the Series B Preferred
Stock for all past dividend periods.
LIQUIDATION RIGHTS
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation (a "Liquidation Event"), the holders of shares of
Series B Preferred Stock, after payment or provision for payment of any
distribution required to be made on any shares of the Corporation having a
preference or a priority over the shares of Series B Preferred Stock on
liquidation, are entitled to be paid out of the assets of the Corporation
available for distribution to its stockholders a liquidation preference of
$25.00 per share, plus an amount equal to any accrued and unpaid dividends to
the date of payment, before any distribution of assets is made to holders of
Common Stock or any
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other class or series of stock of the Corporation that ranks junior to the
Series B Preferred Stock as to liquidation rights.
The Series B Preferred Stock shall, with respect to liquidation rights, rank
(a) senior to the Series A Convertible Preferred Stock of the Corporation, (b)
senior to the Series X Junior Participating Cumulative Preferred Stock of the
Corporation, (c) senior to all classes or series of the Corporation Common Stock
and to all other equity securities the terms of which specifically provide that
such equity securities rank either on a parity with the Corporation Common Stock
or junior to the Series B Preferred Stock with respect to liquidation rights,
(d) on a parity with all equity securities issued by the Corporation the terms
of which specifically provide that such equity securities rank on a parity with
the Series B Preferred Stock with respect to liquidation rights, and (e) junior
to all other equity securities issued by the Corporation.
The consolidation or merger of the Corporation with or into any other
corporation, trust or entity or of any other corporation, trust or other entity
with or into the Corporation or the sale, lease or conveyance of all, or
substantially all of, the property or business of the Corporation, shall not be,
or be deemed to constitute, a Liquidation Event.
REDEMPTION RIGHTS
Except as described below, the Series B Preferred Stock shall not be
redeemable prior to January 2, 2000. On and after January 2, 2000, the
Corporation, at its option and upon written notice, may redeem shares of the
Series B Preferred Stock for cash at a redemption price of $25.00 per share,
plus an amount equal to all accrued and unpaid dividends thereon to the date
fixed for redemption, without interest.
In the event of a Change of Control of the Corporation (as such term is
defined in the Certificate of Designation), the Corporation, at its option and
upon written notice, may, out of funds legally available therefor, redeem shares
of the Series B Preferred Stock for cash at a redemption price of $25.00 per
share, plus an amount equal to all accrued and unpaid dividends thereon to the
date fixed for redemption, without interest.
Unless full cumulative dividends on all shares of Series B Preferred Stock
shall have been or contemporaneously are declared and paid for all past dividend
periods, no shares of Series B Preferred Stock shall be redeemed; provided,
however, that the foregoing shall not prevent the purchase by the Corporation of
shares of Excess Stock as defined in the Amended and Restated Certificate of
Incorporation of the Corporation.
VOTING RIGHTS
Holders of the Series B Preferred Stock will not have any voting rights,
except as set forth below or as required by law.
Whenever dividends on any shares of Series B Preferred Stock shall be in
arrears for six or more quarterly periods (a "Preferred Dividend Default"),
regardless of whether the Preferred Dividend Defaults occurred in consecutive
quarterly periods, the holders of such shares of Series B Preferred Stock
(voting separately as a class with all other series of Preferred Stock ranking
on a parity with the Series B Preferred Stock as to dividends or on liquidation
("Parity Preferred") upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of a total of two
additional directors of the Corporation at a special meeting called by the
holders of record of at least 20% of the outstanding shares of Series B
Preferred Stock or the holders of shares of any other series of Parity Preferred
so in arrears or at the next annual meeting of stockholders, and at each
subsequent annual meeting until all dividends accumulated on such shares of
Series B Preferred Stock for the past
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dividend periods and the dividend for the then current dividend period shall
have been fully paid or authorized and a sum sufficient for the payment thereof
set aside for payment in full.
The above voting provisions will not apply if all outstanding shares of
Series B Preferred Stock shall have been redeemed or called for redemption upon
proper notice and sufficient funds shall have been irrevocably deposited or set
aside to effect such redemption.
Any increase or decrease in the amount of authorized capital stock of any
class or series, including the Series B Preferred Stock, shall not require the
consent or vote of the holders of Series B Preferred Stock and shall not be
deemed to materially and adversely affect the designations, preferences or
special rights of the Series B Preferred Stock.
PREEMPTIVE RIGHTS
The holders of Series B Preferred Stock shall have no preemptive rights,
including preemptive rights with respect to any shares of capital stock or other
securities of the Corporation convertible into or carrying rights or options to
purchase any such shares.
OWNERSHIP LIMITS AND RESTRICTIONS ON TRANSFER
The shares of Series B Preferred Stock are subject to restrictions contained
in the Amended and Restated Certificate of Incorporation of the Corporation
which prohibit (a) any Person (other than a Look-Through Entity) (as such terms
are defined in the Amended and Restated Certificate of Incorporation of the
Corporation) from Beneficially Owning or Constructively Owning (as such terms
are defined in the Amended and Restated Certificate of Incorporation of the
Corporation) in excess of 8.0% of the number of outstanding shares of any class
or series of Equity Stock (as that term is defined in the Amended and Restated
Certificate of Incorporation of the Corporation), (b) any Look-Through Entity
from Beneficially Owning or Constructively Owning in excess of 9.8% of the
number of outstanding shares of any class or series of Equity Stock, (c) any
Person from acquiring or maintaining any ownership interest in the stock of the
Corporation that is inconsistent with (i) the requirements of the Internal
Revenue Code of 1986, as amended, pertaining to real estate investment trusts or
(ii) Article IV of the Amended and Restated Certificate of Incorporation of the
Corporation and (d) any transfer of shares of any class or series of Equity
Stock of the Corporation that are paired pursuant to the Pairing Agreement,
dated as of February 17, 1983, between the Corporation and Wyndham (f/k/a
Patriot American Hospitality Operating Company), as amended from time to time in
accordance with the provisions thereof (the "Pairing Agreement"), except in
combination with an equal number of shares of Wyndham in accordance with the
Amended and Restated Bylaws, as amended, of the Corporation and the Pairing
Agreement.
CONVERSION
The Series B Preferred Stock is not convertible into or exchangeable for any
other property or securities of the Corporation, except that the shares of
Series B Preferred Stock may be exchanged by the Corporation for shares of
Excess Stock in accordance with the Amended and Restated Certificate of
Incorporation of the Corporation.
ITEM 2. EXHIBITS
Exhibit 1 Certificate of Designation of the Series B Cumulative Perpetual
Preferred Stock of Patriot American Hospitality, Inc
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
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PATRIOT AMERICAN HOSPITALITY, INC.
(Registrant)
By: /s/ LAWRENCE S. JONES
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Name: Lawrence S. Jones
Title: Executive Vice President and
Treasurer
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Dated: January 22, 1999
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION
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<C> <S>
1 Certificate of Designation of the Series B Cumulative Perpetual Preferred Stock of Patriot American
Hospitality, Inc.
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CERTIFICATE OF DESIGNATION
OF THE
SERIES B CUMULATIVE PERPETUAL PREFERRED STOCK
OF
PATRIOT AMERICAN HOSPITALITY, INC.
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Patriot American Hospitality, Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), does hereby
certify:
1. That, pursuant to authority conferred upon the Board of Directors of the
Corporation by the Amended and Restated Certificate of Incorporation of the
Corporation, as amended (the "Certificate of Incorporation"), and pursuant to
the provisions of Section 151 of the Delaware General Corporation Law, as
amended from time to time (the "DGCL"), said Board of Directors duly adopted a
resolution providing for the designations, preferences and relative,
participating, optional or other rights, and the qualifications, limitations or
restrictions thereof, of a series of preferred stock, which resolution is as
follows:
RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation in accordance with the provisions of the Certificate of
Incorporation, a series of preferred stock of the Corporation known as the
Series B Cumulative Perpetual Preferred Stock be, and such series hereby is,
created, classified and authorized, and the issuance thereof is provided for,
and that the designation and number of shares, and relative rights, preferences
and limitations thereof, shall be as set forth in the form appended hereto as
EXHIBIT A.
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EXHIBIT A
1. DESIGNATION.
A total of 10,000,000 shares of Preferred Stock of the Corporation shall be
designated as Series B Cumulative Perpetual Preferred Stock, par value $.01 per
share (the "Series B Preferred Stock").
2. DIVIDEND RIGHTS.
(a) The holders of record of outstanding shares of Series B Preferred Stock
shall be entitled to receive, when, as and if declared by the Corporation's
Board of Directors (the "Board") out of funds legally available for the payment
of dividends, cumulative preferential cash dividends per share at the rate of
15% on the stated value of $25.00 per share per annum (equivalent to a fixed
annual amount of $3.75 per share). Such dividends shall be cumulative from the
first date on which any Series B Preferred Stock is issued and, if declared and
paid, shall be payable semi-annually in arrears on January 25 and July 25 of
each year or, if not a business day, the next succeeding business day (each, a
"Dividend Payment Date"). The first dividend will be payable on July 25, 1999.
Such dividend and any dividend payable on the Series B Preferred Stock for any
dividend period that is less than a full dividend period will be computed on the
basis of a 360-day year consisting of twelve 30-day months. Dividends will be
payable to holders of record as they appear in the stock records of the
Corporation at the close of business on the applicable record date, which shall
be the fifth day of the calendar month in which the applicable Dividend Payment
Date falls on or such other date designated by the Board for the payment of
dividends that is not more than 60 nor less than 10 days prior to such Dividend
Payment Date (each, a "Dividend Record Date").
(b) Notwithstanding the foregoing, dividends on the Series B Preferred
Stock will accrue whether or not the Corporation has earnings, whether or not
there are funds legally available for the payment of such dividends and whether
or not such dividends are declared. Accrued but unpaid dividends on the Series B
Preferred Stock will accumulate as of the Dividend Payment Date on which they
first become payable.
(c) The Series B Preferred Stock shall, with respect to dividend rights,
rank (a) senior to the Series A Convertible Preferred Stock of the Corporation,
(b) senior to the Series X Junior Participating Cumulative Preferred Stock of
the Corporation, (c) senior to all classes or series of the Corporation Common
Stock and to all other equity securities the terms of which specifically provide
that such equity securities rank either on a parity with the Corporation Common
Stock or junior to the Series B Preferred Stock with respect to the payment of
dividends, (d) on a parity with all equity securities issued by the Corporation
the terms of which specifically provide that such equity securities rank on a
parity with the Series B Preferred Stock with respect to the payment of
dividends, and (e) junior to all other equity securities issued by the
Corporation.
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(d) Except as provided in Section 2(e) below, no dividends will be declared
or paid or set apart for payment on any stock of the Corporation or any other
series of preferred stock ranking, as to dividends, on a parity with or junior
to the Series B Preferred Stock (other than a dividend in shares of the
Corporation's Common Stock or in any other class of stock ranking junior to the
Series B Preferred Stock as to dividends and upon liquidation) for any period
unless full cumulative dividends have been or contemporaneously are declared and
paid, or declared and a sum sufficient for the payment thereof is set apart for
such payment, on the Series B Preferred Stock for all past dividend periods.
(e) When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Series B Preferred Stock and the shares of
any other series of Preferred Stock (as defined in the Certificate of
Incorporation) ranking on a parity as to dividends with the Series B Preferred
Stock, all dividends authorized upon the Series B Preferred Stock and any other
series of Preferred Stock ranking on a parity as to dividends with the Series B
Preferred Stock shall be declared pro rata so that the amount of dividends
declared per share of Series B Preferred Stock and such other series of
Preferred Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the Series B Preferred Stock and such other
series of Preferred Stock (which shall not include any accrual in respect of
unpaid dividends for prior dividend periods if such Preferred Stock does not
have a cumulative dividend) bear to each other. No interest, or sum of money in
lieu of interest, shall be payable in respect of any dividend payment or
payments on Series B Preferred Stock which may be in arrears.
(f) Except as provided in the immediately preceding paragraph, unless full
cumulative dividends on the Series B Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment for all past dividend periods, no
dividends (other than in shares of the Corporation's Common Stock or other
shares of stock ranking junior to the Series B Preferred Stock as to dividends
and upon liquidation) shall be declared or paid or set aside for payment nor
shall any other distribution be authorized or made upon the Corporation's
Common Stock, or any other stock of the Corporation ranking junior to or on a
parity with the Series B Preferred Stock as to dividends or upon liquidation.
(g) Holders of the Series B Preferred Stock shall not be entitled to any
dividend, whether payable in cash, property or stock in excess of full
cumulative dividends on the Series B Preferred Stock as described above. Any
dividend payment made on shares of the Series B Preferred Stock shall first be
credited against the earliest accrued but unpaid dividend due with respect to
such shares which remains payable.
3. LIQUIDATION PREFERENCE.
(a) Upon any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation (a "Liquidation Event"), the holders of
shares of Series B Preferred Stock then outstanding, after payment or provision
for payment of any distribution required to be made on any shares of the
Corporation having a preference or a priority over the
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shares of Series B Preferred Stock on liquidation, are entitled to be paid out
of the assets of the Corporation available for distribution to its stockholders
a liquidation preference of $25.00 per share, plus an amount equal to any
accrued and unpaid dividends to the date of payment, before any distribution of
assets is made to holders of the Corporation's Common Stock or any other
class or series of stock of the Corporation that ranks junior to the Series B
Preferred Stock as to liquidation rights.
(b) The Series B Preferred Stock shall, with respect to liquidation rights,
rank (a) senior to the Series A Convertible Preferred Stock of the Corporation,
(b) senior to the Series X Junior Participating Cumulative Preferred Stock of
the Corporation, (c) senior to all classes or series of the Corporation Common
Stock and to all other equity securities the terms of which specifically provide
that such equity securities rank either on a parity with the Corporation Common
Stock or junior to the Series B Preferred Stock with respect to liquidation
rights, (d) on a parity with all equity securities issued by the Corporation the
terms of which specifically provide that such equity securities rank on a parity
with the Series B Preferred Stock with respect to liquidation rights, and (e)
junior to all other equity securities issued by the Corporation.
(c) In the event that, upon any Liquidation Event, the available assets of
the Corporation are sufficient to pay part but not all of the amount of the
liquidating distributions on all outstanding shares of Series B Preferred Stock
and the corresponding amounts payable on all shares of other classes or series
of stock of the Corporation ranking on a parity with the Series B Preferred
Stock in the distribution of assets, then the holders of the Series B Preferred
Stock and all other such classes or series of stock shall share ratably in any
such distribution of assets in proportion to the full liquidating distributions
to which they would otherwise be respectively entitled.
(d) Written notice of any payment to be made by the Corporation as a result
of a Liquidation Event, stating the payment date or dates when, and the place or
places where, the amounts distributable in such circumstances shall be payable,
shall be given by first class mail, postage pre-paid, not less than 30 nor more
than 60 days prior to the payment date stated therein, to each record holder of
the Series B Preferred Stock at the address of each holder as the same shall
appear on the stock transfer records of the Corporation on a record date
designated by the Board.
(e) After payment of the full amount to which the holders of Series B
Preferred Stock are entitled hereunder on a Liquidation Event, they will have no
right or claim to any of the remaining assets of the Corporation.
(f) The consolidation or merger of the Corporation with or into any
other corporation, trust or entity or of any other corporation, trust or
other entity with or into the Corporation or the sale, lease or conveyance of
all, or substantially all of, the property or business of the Corporation,
shall not be, or be deemed to constitute, a Liquidation Event.
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4. REDEMPTION.
(a) CORPORATION'S RIGHT OF OPTIONAL REDEMPTION. Except as specifically set
forth in the next sentence and Section 4(b) below, the Series B Preferred Stock
shall not be redeemable prior to January 2, 2000. However, for so long as the
Corporation elects to remain a qualified real estate investment trust ("REIT")
for federal income tax purposes, the Series B Preferred Stock shall be subject
to the provisions of Article IV of the Corporation's Certificate of
Incorporation pursuant to which Series B Preferred Stock owned by a stockholder
in excess of the Ownership Limit or Look-Through Ownership Limit (as such terms
are defined in the Certificate of Incorporation), as the case may be, will
automatically be exchanged for shares of Excess Stock and the Corporation will
have the right to purchase Excess Stock from the holder. On and after January 2,
2000, the Corporation, at its option and upon not less than 30 nor more than 60
days' written notice, may redeem shares of the Series B Preferred Stock, in
whole or in part, at any time or from time to time, for cash at a redemption
price of $25.00 per share, plus an amount equal to all accrued and unpaid
dividends thereon to the date fixed for redemption, without interest. If less
than all of the outstanding shares of Series B Preferred Stock are to be
redeemed, the Series B Preferred Stock to be redeemed shall be selected pro rata
(as nearly as may be practicable without creating fractional shares) or by any
other equitable method determined by the Corporation.
(b) Notwithstanding the provisions of Section 4(a), in the event of a
Change of Control of the Corporation (as such term is defined below), the
Corporation, at its option and upon not less than 30 nor more than 60 days'
written notice, may, out of funds legally available therefor, redeem shares of
the Series B Preferred Stock, in whole or in part, at any time or from time to
time, for cash at a redemption price of $25.00 per share, plus an amount equal
to all accrued and unpaid dividends thereon to the date fixed for redemption,
without interest.
"Change in Control" shall be deemed to have occurred if: (i) any "person"
or "group" (as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), or any consortium of
investors acting pursuant to the same investment agreement, or a series or
related investment agreements, with the Corporation, other than a trustee or
other fiduciary holding securities under an employee benefit plan of the
Corporation, is or becomes the "beneficial owner" (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of securities of
the Corporation representing 25% or more of the combined voting power of the
Corporation's then outstanding securities; or (ii) the stockholders of the
Corporation approve a merger or consolidation of the Corporation with or into
any other corporation, other than a merger or consolidation that would result in
the voting securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving or resulting entity, or any parent
thereof) at least sixty percent (60%) of the combined voting power of the voting
securities of the Corporation or such surviving or resulting entity outstanding
immediately after such merger or consolidation; or
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(iii) the stockholders of the Corporation approve the dissolution of the
Corporation or the sale, or lease or exchange by the Corporation of all or
substantially all the Corporation's assets.
(c) LIMITATIONS ON REDEMPTION. Unless full cumulative dividends on all
shares of Series B Preferred Stock shall have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for payment for all past dividend periods, no shares of Series B Preferred
Stock shall be redeemed; provided, however, that the foregoing shall not prevent
the purchase by the Corporation of shares of Excess Stock.
(d) RIGHTS TO DIVIDENDS ON SHARES CALLED FOR REDEMPTION. Immediately prior
to any redemption of Series B Preferred Stock, the Corporation shall pay, in
cash, any accumulated and unpaid dividends through the redemption date, unless a
redemption date falls after a Dividend Record Date and prior to the
corresponding Dividend Payment Date, in which case each holder of Series B
Preferred Stock at the close of business on such Dividend Record Date shall be
entitled to receive the dividend payable on such shares on the corresponding
Dividend Payment Date notwithstanding the redemption of such shares before such
Dividend Payment Date. Except as provided above, the Corporation will make no
payment or allowance for unpaid dividends, whether or not in arrears, on Series
B Preferred Stock for which a notice of redemption has been given.
(e) PROCEDURES FOR REDEMPTION.
(i) Notice of redemption will be given by publication in a newspaper
of general circulation in the City of New York, such publication to be made once
a week for two successive weeks commencing not less than 30 nor more than 60
days prior to the redemption date. A similar notice will be mailed by the
Corporation, postage prepaid, not less than 30 nor more than 60 days prior to
the redemption date, addressed to the respective holders of record of the Series
B Preferred Stock to be redeemed at their respective addresses as they appear on
the stock transfer records of the Corporation. Neither the failure to give such
notice nor any defect therein or in the mailing thereof shall affect the
validity of the proceedings for the redemption of any shares of Series B
Preferred Stock except as to a holder to whom notice was defective or not given.
(ii) In addition to any information required by law or by the
applicable rules of any exchange upon which Series B Preferred Stock may be
listed or admitted to trading, such notice shall state: (A) the redemption date;
(B) the redemption price; (C) the number of shares of Series B Preferred Stock
to be redeemed; (D) the place or places where the Series B Preferred Stock is to
be surrendered for payment of the redemption price; and (E) that dividends on
the shares to be redeemed will cease to accrue on such redemption date. If less
than all of the Series B Preferred Stock held by any holder is to be redeemed,
the notice mailed to such holder shall also specify the number of shares of
Series B Preferred Stock held by such holder to be redeemed.
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(iii) If notice of redemption of any shares of Series B Preferred
Stock has been given and if the funds necessary for such redemption have been
irrevocably deposited or set aside by the Corporation to pay the holders of any
shares of Series B Preferred Stock so called for redemption, then from and after
the redemption date dividends will cease to accrue on such shares of Series B
Preferred Stock, such shares of Series B Preferred Stock shall no longer be
deemed outstanding and all rights of the holders of such shares will terminate,
except the right to receive the redemption price. Holders of Series B Preferred
Stock to be redeemed shall surrender the certificates for shares of Series B
Preferred Stock so redeemed (properly endorsed or assigned for transfer, if the
Corporation shall so require and the notice shall so state) at the place
designated in such notice and, upon such surrender in accordance with said
notice of the certificates for shares of Series B Preferred Stock so redeemed
(properly endorsed or assigned for transfer, if the Corporation shall so require
and the notice shall so state), such shares of Series B Preferred Stock shall be
redeemed by the Corporation at the redemption price plus an amount equal to all
accrued and unpaid dividends payable upon such redemption. In case less than all
the shares of Series B Preferred Stock represented by any such certificate are
redeemed, a new certificate or certificates shall be issued representing the
unredeemed shares of Series B Preferred Stock without cost to the holder
thereof.
(f) APPLICATION OF ARTICLE IV. The shares of Series B Preferred Stock are
subject to the provisions of Article IV of the Certificate of Incorporation.
Notwithstanding the provisions of Article IV of the Certificate of
Incorporation, shares of Series B Preferred Stock which have been exchanged
pursuant to the Certificate of Incorporation for Excess Stock may be redeemed,
in whole or in part, at any time or from time to time, for cash at a redemption
price of $25.00 per share, plus an amount equal to all accrued and unpaid
dividends thereon to the date fixed for redemption, without interest. If less
than all of the outstanding Series B Preferred Stock is to be redeemed, the
Series B Preferred Stock to be redeemed shall be selected pro rata (as nearly as
may be practicable without creating fractional shares) or by any other equitable
method determined by the Corporation.
(g) STATUS OF REDEEMED SHARES. Any shares of Series B Preferred Stock that
shall at any time have been redeemed shall, after such redemption, not be
reissued and the Board shall take all such actions as are necessary to cause
such shares to receive the status of authorized but unissued shares of preferred
stock, without designation as to series until such time as such shares are once
more designated as part of a particular series by the Board.
5. VOTING RIGHTS.
(a) Holders of the Series B Preferred Stock will not have any voting
rights, except as set forth below or as required by law.
(b) Whenever dividends on any shares of Series B Preferred Stock shall be
in arrears for six or more quarterly periods (a "Preferred Dividend Default"),
regardless of whether the Preferred Dividend Defaults occurred in consecutive
quarterly periods, the holders of such shares of Series B Preferred Stock
(voting separately as a class with all other series of
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Preferred Stock ranking on a parity with the Series B Preferred Stock as to
dividends or on liquidation ("Parity Preferred") upon which like voting rights
have been conferred and are exercisable) will be entitled to vote for the
election of a total of two additional directors of the Corporation (the
"Preferred Stock Directors") at a special meeting called by the holders of
record of at least 20% of the outstanding shares of Series B Preferred Stock or
the holders of shares of any other series of Parity Preferred so in arrears
(unless such request is received less than 90 days before the date for the next
annual or special meeting of stockholders) or at the next annual meeting of
stockholders, and at each subsequent annual meeting until all dividends
accumulated on such shares of Series B Preferred Stock for the past dividend
periods and the dividend for the then current dividend period shall have been
fully paid or authorized and a sum sufficient for the payment thereof set aside
for payment in full.
(c) If and when all accumulated dividends and the dividend for the current
dividend period on the Series B Preferred Stock shall have been paid in full or
set aside for payment in full, the holders of shares of Series B Preferred Stock
shall be divested of the voting rights set forth in Section 6(b) hereof (subject
to revesting in the event of each and every Preferred Dividend Default) and, if
all accumulated dividends and the dividend for the current dividend period have
been paid in full or set aside for payment in full on all other series of Parity
Preferred upon which like voting rights have been conferred and are exercisable,
the term of office of each Preferred Stock Director so elected shall
automatically terminate. Any Preferred Stock Director may be removed at any time
with or without cause by the vote of, and shall not be removed without cause
otherwise than by the vote of, the holders of record of a majority of the
outstanding shares of the Series B Preferred Stock when they have the voting
rights set forth in Section 6(b) (voting separately as a class with all other
series of Parity Preferred upon which like voting rights have been conferred and
are exercisable). So long as a Preferred Dividend Default shall continue, any
vacancy in the office of a Preferred Stock Director may be filled by written
consent of the Preferred Stock Director remaining in office, or if none remains
in office, by a vote of the holders of record of a majority of the outstanding
shares of Series B Preferred Stock when they have the voting rights set forth in
Section 6(b) (voting separately as a class with all other series of Parity
Preferred upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter.
(d) The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of Series B Preferred Stock shall have
been redeemed or called for redemption upon proper notice and sufficient funds
shall have been irrevocably deposited or set aside to effect such redemption.
(e) Any increase or decrease in the amount of authorized capital stock of
any class or series, including the Series B Preferred Stock, shall not require
the consent or vote of the holders of Series B Preferred Stock and shall not be
deemed to materially and adversely affect the designations, preferences or
special rights of the Series B Preferred Stock.
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6. NO PREEMPTIVE OR OTHER RIGHTS.
The holders of Series B Preferred Stock shall have no preemptive rights,
including preemptive rights with respect to any shares of capital stock or other
securities of the Corporation convertible into or carrying rights or options to
purchase any such shares.
7. LEGEND. Each certificate for shares of Series B Preferred Stock shall
bear the following legend:
"The shares of Patriot American Hospitality, Inc. represented by this
certificate are subject to restrictions in the Amended and Restated Certificate
of Incorporation of the company which prohibit (a) any Person (other than a
Look-Through Entity) (as such terms are defined in the Amended and Restated
Certificate of Incorporation of the company) from Beneficially Owning or
Constructively Owning (as such terms are defined in the Amended and Restated
Certificate of Incorporation of the company) in excess of 8.0% of the number of
outstanding shares of any class or series of Equity Stock (as that term is
defined in the Amended and Restated Certificate of Incorporation of the
company), (b) any Look-Through Entity from Beneficially Owning or Constructively
Owning in excess of 9.8% of the number of outstanding shares of any class or
series of Equity Stock, (c) any Person from acquiring or maintaining any
ownership interest in the stock of the company that is inconsistent with (i) the
requirements of the Internal Revenue Code of 1986, as amended, pertaining to
real estate investment trusts or (ii) Article IV of the Amended and Restated
Certificate of Incorporation of the company and (d) any transfer of shares of
any class or series of Equity Stock of the company that are paired pursuant to
the Pairing Agreement, dated as of February 17, 1983, between the company and
Wyndham International, Inc. (f/k/a Patriot American Hospitality Operating
Company), as amended from time to time in accordance with the provisions thereof
(the "Pairing Agreement"), except in combination with an equal number of shares
of Wyndham International, Inc. in accordance with the Amended and Restated
Bylaws, as amended, of the company and the Pairing Agreement, copies of which
are on file with the transfer agent named on the face hereof, and the holder of
this certificate by his acceptance hereof consents to be bound by such
restrictions.
Patriot American Hospitality, Inc. will furnish without charge to each
stockholder who so requests a copy of the relevant provisions of the Amended and
Restated Certificate of Incorporation and the Amended and Restated Bylaws, as
amended, of the company, a copy of the Pairing Agreement and a copy of the
provisions setting forth the designations, preferences, privileges and rights of
each class of stock or series thereof that the company is authorized to issue
and the qualifications, limitations and restrictions of such preferences and/or
rights. Any such request may be addressed to the Secretary of the company or to
the transfer agent named on the face hereof."
8. CONVERSION. The Series B Preferred Stock is not convertible into or
exchangeable for any other property or securities of the Corporation, except
that the shares of
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Series B Preferred Stock may be exchanged by the Corporation for shares of
Excess Stock in accordance with the Certificate of Incorporation.
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IN WITNESS WHEREOF, Patriot American Hospitality, Inc. has caused William
W. Evans III, President and Chief Operating Officer of the Corporation to
execute this certificate this 22nd day of January, 1999.
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ William W. Evans
----------------------------------------------
Name: William W. Evans III
Title: President and Chief Operating Officer
