<PAGE>
As filed with the Securities and Exchange Commission on July 2, 1999
REGISTRATION STATEMENT NO. -
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------------
WYNDHAM INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-2878485
(STATE OF INCORPORATION) (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 OFFICES)
WYNDHAM INTERNATIONAL, INC.
1997 INCENTIVE PLAN
AND
WYNDHAM INTERNATIONAL
EMPLOYEE SAVINGS & RETIREMENT PLAN
(FULL TITLE OF THE PLAN)
------------------------------------
JAMES D. CARREKER
PRESIDENT 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)
------------------------------------
With a copy to:
GILBERT G. MENNA, P.C.
KATHRYN I. MURTAGH, ESQ.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
Title of Securities Being Amounts to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Share (2) Aggregate Offering Price Registration Fee (3)
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
Class A Common Stock, par 20,000,000 $4.50 $90,000,000 $25,020
$0.01 value per share, of
Wyndham International, Inc.
("Class A Common Stock")
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to
the Amended and Restated Wyndham International, Inc. 1997 Stock
Incentive Plan (the "Wyndham Incentive Plan") and the Patriot
American Hospitality/Wyndham International Employee Savings and
Retirement Plan (the "Retirement Plan") in the event of a stock
dividend, reverse stock split, split-up, recapitalization, forfeiture
of stock under these plans or other similar event. Pursuant to
Rule 429, 6,711,672 of the shares of common stock included in these
shares are being carried forward from (i) the 300,000 shares of common
stock, par value $0.01 per share, of each of Patriot American
Hospitality, Inc. ("Patriot") and Wyndham International, Inc.
("Wyndham", and together with Patriot, the "Companies"), which
shares were paired and traded together as a single unit (the "Paired
Shares") included in the 300,000 Paired Shares previously registered
by the Companies' joint registration statement on Form S-8
(Registration Nos. 333-44197 and 333 44197-01) and (ii) the 6,411,672
Paired Shares included in the 6,411,672 Paired Shares previously
registered by the Companies' joint registration statement on Form S-8
(Registration Nos. 333-56315 and 333-56315-01) (together, the "Prior
Registration Statements").
(2) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act of 1933, as amended (the "Securities Act"), solely for
the purposes of determining the registration fee and is based upon the
price at which outstanding securities were issued or may be exercised
and market value of outstanding Class A Common Stock on June 30,
1999, utilizing the average of the high and low sale prices
reported on the New York Stock Exchange for that date.
(3) Pursuant to Rule 429, the filing fee of $25,020 payable hereunder is
offset by fees of $8,396 previously paid in connection with
the registration of 6,711,672 Paired Shares under the Prior
Registration Statements.
This Registration Statement also constitutes Post-Effective Amendment
No. 1 to each of the Prior Registration Statements.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
On June 30, 1999, Wyndham International, Inc. ("Wyndham") and Patriot
American Hospitality, Inc. ("Patriot", and together with Wyndham, the
"Companies") completed a $1 billion equity investment and related restructuring
(the "Restructuring") of the two companies in accordance with the terms of the
Securities Purchase Agreement and related Restructuring Plan between the
Companies and the investors named therein.
As required by the Restructuring Plan, Wyndham and Patriot each
effectuated a one-for-twenty reverse stock split (the "Reverse Stock Splits") of
their respective common stock. In addition, the Amended and Restated Certificate
of Incorporation of Wyndham was also further amended and restated (the "Wyndham
Charter Amendment") so that each share of Wyndham common stock, par value $0.01
per share (the "Wyndham Common Stock"), issued and outstanding immediately prior
to the effectiveness of the Wyndham Charter Amendment was automatically
converted into one share of Wyndham class A common stock, par value $0.01 per
share ("Wyndham Class A Common Stock").
Under the terms of the Agreement and Plan of Merger (the "Merger
Agreement"), dated as of March 26, 1999, by and among Patriot, Wyndham and
Wyndham International Acquisition Subsidiary, Inc. ("Acquisition Sub"),
Acquisition Sub was merged with and into Patriot (the "Merger"). As a result of
the Merger, Patriot became a wholly-owned subsidiary of Wyndham. Each
outstanding share of common stock of Acquisition Sub was converted into one
share of the common stock of Patriot, $0.01 par value per share ("Patriot Common
Stock"). Pursuant to the Merger Agreement each share of Patriot Common Stock was
then converted into 19 shares of Wyndham Common Stock.
Prior to the Restructuring, the shares of common stock of Wyndham
and shares of common stock of Patriot were "paired" (the "Paired Shares")
pursuant to a pairing agreement and traded together as a single unit. The
pairing agreement between the Companies was terminated as part of the
Restructuring. The end result of the Reverse Stock Splits, the Wyndham
Charter Amendment and the Merger was to convert each previously outstanding
Paired Share into one share of Wyndham Class A Common Stock.
As part of the Merger, Wyndham assumed Patriot's obligations under
each existing option to purchase shares of Patriot common stock that was
outstanding immediately prior to the Merger. The assumed options did not
terminate in connection with the Merger and continue to have, and be subject
to, the same terms and conditions set forth in the stock option plans and
agreements in effect immediately prior to the Merger. All references to
Patriot in the assumed options are now deemed to be references to Wyndham and
each option is exercisable for one share of Wyndham Class A Common Stock.
This Registration Statement relates to an aggregate amount of up to
20,000,000 shares of Wyndham Class A Common Stock issuable pursuant to the
Amended and Restated Wyndham International, Inc. 1997 Incentive Plan and the
Wyndham International Employee Savings and Retirement Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. PLAN INFORMATION.*
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 (the "Securities Act") and the Note
to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Wyndham International, Inc. (the "Registrant" or "Wyndham") and
Patriot American Hospitality, Inc. ("Patriot" and together with Wyndham, the
"Companies") hereby incorporates by reference the following documents which
have previously been filed with the Securities and Exchange Commission:
Wyndham and Patriot
- -------------------
1. Annual Report on Form 10-K (as amended on May 10, 1999, May
24, 1999, and May 28, 1999) of Patriot and Wyndham for the
fiscal year ended December 31, 1998;
2. Quarterly Report on Form 10-Q of Patriot and Wyndham for the
fiscal quarter ended March 31, 1999;
3. Current Reports on Form 8-K of Patriot and Wyndham dated:
(1) January 5, 1998 (filed January 13, 1998); (2) February 9,
1998 (filed February 12, 1998); (3) March 23, 1998 (filed
March 30, 1998); (4) April 2, 1998 (filed April 8, 1998);
(5) April 20, 1998 (filed April 22, 1998); (6) May 27, 1998,
as amended (filed May 27, 1998 and May 28, 1998); (7) June 2,
1998, as amended (filed June 17, 1998, August 6, 1998 and
March 26, 1999); (8) November 9, 1998, as amended (filed
November 9, 1998 and November 10, 1998); (9) November 30, 1998
(filed November 30, 1998); (10) December 16, 1998 (filed
December 16, 1998); (11) December 16, 1998 (filed December 18,
1998); (12) December 20, 1998 (filed December 22, 1998); (13)
January 29, 1999 (filed February 4, 1999); (14) February 16,
1999 (filed February 16, 1999); (15) March 2, 1999 (filed
March 2, 1999); (16) February 26, 1999 (filed March 3, 1999);
(17) March 26, 1999 (filed March 26, 1999); (18) March 26,
1999, as amended (filed on March 29, 1999, May 10, 1999 and
May 24, 1999); and
Wyndham
- -------
1. The description of the Wyndham International, Inc. Class A Common
Stock contained or incorporated by reference in Wyndham
International, Inc.'s Registration Statement on Form 8-A,
(No. 001-09320), including any amendments thereto.
2
<PAGE>
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment hereto that
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in
a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained
herein or in any subsequently filed document which also is incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES.
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
Item 6. 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 certificte 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.
3
<PAGE>
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
Item 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
EXHIBIT
NUMBER DESCRIPTION
- ---------- -----------
3.1 Amended and Restated Certificate of Incorporation of Wyndham
International, Inc.
3.2 Amended and Restated By-Laws of Wyndham International, Inc.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of
the securities being registered
23.1 Consent of Goodwin, Procter & Hoar LLP (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP - Dallas, Texas
23.3 Consent of Ernst & Young LLP - San Juan, Puerto Rico
23.4 Consent of Ernst & Young LLP - Wichita, Kansas
23.5 Consent of PriceWaterhouseCoopers - Dallas, Texas
23.6 Consent of PriceWaterhouseCoopers - Tampa, Florida
23.7 Consent of PriceWaterhouseCoopers - Miami, Florida
23.8 Consent of PriceWaterhouseCoopers - Pittsburgh, Pennsylvania
23.9 Consent of Arthur Andersen - UK
24.1 Powers of Attorney (included on signature pages hereto)
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not
exceed that which was registered) and any deviation from
the low or high end of the estimated offering range may
be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
4
<PAGE>
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii)
herein do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the undersigned Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective
amendment 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; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d)
of the Exchange Act) 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.
(c) 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, 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.
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation of
Wyndham International, Inc.
3.2 Amended and Restated By-Laws of Wyndham
International, Inc.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality
of the securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP - Dallas, Texas
23.3 Consent of Ernst & Young LLP - San Juan, Puerto Rico
23.4 Consent of Ernst & Young LLP - Wichita, Kansas
23.5 Consent of PriceWaterhouseCoopers - Dallas, Texas
23.6 Consent of PriceWaterhouseCoopers - Tampa, Florida
23.7 Consent of PriceWaterhouseCoopers - Miami, Florida
23.8 Consent of PriceWaterhouseCoopers - Pittsburgh, Pennsylvania
23.9 Consent of Arthur Andersen - UK
24.1 Powers of Attorney (included on signature pages hereto)
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Wyndham
International, Inc. certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Dallas, Texas on this 2nd day of July, 1999.
Wyndham International, Inc.
By: /s/ James D. Carreker
_______________________________
James D. Carreker
PRESIDENT AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that we, the undersigned officers and
Directors of Wyndham International, Inc. hereby severally constitute James D.
Carreker as our true and lawful attorney with full power to sign for us and
in our names in the capacities indicated below, the Registration Statement
filed herewith and any and all amendments to said Registration Statement, and
generally to do all such things in our names and in our capacities as
officers and Directors to enable Wyndham International, Inc. to comply with
the provisions of the Securities Act of 1933, and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorney to said Registration
Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
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>
/s/ James D. Carreker
- ------------------------------------ President and Chief Executive July 2, 1999
James D. Carreker Officer, (Principal Executive Officer)
/s/ Richard L. Mahoney
- ------------------------------------ Executive Vice President and Chief Financial Officer, July 2, 1999
Richard L. Mahoney (Principal Financial Officer
and Principal Accounting Officer)
/s/ Leonard Boxer
- ------------------------------------ Director July 2, 1999
Leonard Boxer
/s/ Burton Einspruch, M.D.
- ------------------------------------ Director July 2, 1999
Burton Einspruch, M.D.
/s/ Paul A. Nussbaum
- ------------------------------------ Director July 2, 1999
Paul A. Nussbaum
S-1
<PAGE>
/s/ Karim Alibhai
- ------------------------------------ Director July 2, 1999
Karim Alibhai
/s/ Sherwood M. Weiser
- ------------------------------------ Director July 2, 1999
Sherwood M. Weiser
- ------------------------------------ Director July 2, 1999
Susan T. Groenteman
/s/ Rolf E. Ruhfus
- ------------------------------------ Director July 2, 1999
Rolf E. Ruhfus
- ------------------------------------ Director July 2, 1999
Arch K. Jacobson
- ------------------------------------ Director July 2, 1999
James C. Leslie
</TABLE>
S-2
Page>
EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
WYNDHAM INTERNATIONAL, INC.
Wyndham International, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The name of the Corporation is Wyndham International, Inc. The date of
the filing of its original Certificate of Incorporation with the
Secretary of State of the State of Delaware was January 27, 1983 (the
"Original Certificate of Incorporation"). The name under which the
Corporation filed the Original Certificate of Incorporation was Bay
Meadows Operating Company. An Amended and Restated Certificate of
Incorporation (the "Second Certificate") was filed with the Secretary
of State of the State of Delaware on July 1, 1997, pursuant to which,
among other things, the name of the Corporation was changed to Patriot
American Hospitality Operating Company. An Amended and Restated
Certificate of Incorporation (the "Third Certificate") was filed with
the Secretary of State of the State of Delaware on January 5, 1998,
pursuant to which, among other things, the name of the Corporation was
changed to Wyndham International, Inc.
2. This Restated Certificate of Incorporation (the "Certificate") amends,
restates and integrates the provisions of the Third Certificate, was
duly adopted by the Board of Directors of the Corporation in accordance
with the provisions of Sections 242 and 245 of the Delaware General
Corporation Law, as amended from time to time (the "DGCL"), and was
duly adopted by the stockholders of the Corporation in accordance with
the applicable provisions of Sections 242 and 245 of the DGCL.
3. Upon the filing of this Restated Certificate of Incorporation, each
share of Common Stock, par value $0.01 per share, of the Corporation
shall be reclassified and without any further action by the Corporation
or any stockholder shall become one share of Class A Common Stock, par
value $0.01 per share, of the Corporation (the "Class A Common Stock").
4. The text of the Third Certificate is hereby amended and restated in its
entirety to provide as herein set forth in full.
I.
NAME
The name of the corporation is Wyndham International, Inc.
<PAGE>
II.
PURPOSES
The nature of business or purposes to be conducted or promoted by the
Corporation is to engage in any lawful act for which corporations may be
organized under the DGCL.
III.
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
IV.
CAPITAL STOCK
The Corporation shall have the authority to issue 750,000,000 shares of
Class A Common Stock, 750,000,000 shares of Class B common stock, par value $.0l
per share (the "Class B Common Stock"), and 150,000,000 shares of preferred
stock, par value $.0l per share (the "Preferred Stock"). The Class A Common
Stock and Class B Common Stock are herein referred to collectively as the
"Common Stock." Except as otherwise provided herein, all shares of Class A
Common Stock and Class B Common Stock will be identical and will entitle the
holders thereof to the same rights and privileges. The rights, preferences,
voting powers and the qualifications, limitations and restrictions of the
authorized stock shall be as follows:
A. COMMON STOCK.
1. VOTING RIGHTS. Except as provided in Article V below, (i)
each share of Common Stock shall be entitled to one vote on all matters
submitted to a vote at any meeting of stockholders and (ii) the holders of
shares of Common Stock shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation (or, if any holders of shares of
Preferred Stock are entitled to vote together with the holders of Common Stock
on any matter, as a single class with such holders of Preferred Stock on such
matter).
2. DIVIDEND RIGHTS. Subject to the rights of holders of
Preferred Stock and subject to any other provisions of this Certificate or any
amendment hereto, holders of Common Stock shall be entitled to receive such
dividends and other distributions in cash, stock or property of the Corporation
as may be declared thereon by the Board of Directors from time to time. The
holders of the Class A Common Stock and the Class B Common Stock will be
entitled to receive, to the extent permitted by law, and to share equally and
ratably, share for share, such
2
<PAGE>
dividends as may declared from time to time by the Board of Directors, whether
payable in cash, property or securities of the Corporation; provided, however,
that if the dividends that are declared are payable in shares of Class A Common
Stock or Class B Common Stock, such dividends will be declared at the same rate
on each class of stock, and the dividends payable to holders of Class A Common
Stock will be paid in Class A Common Stock and the dividends payable to holders
of Class B Common Stock will be paid in Class B Common Stock.
3. LIQUIDATION RIGHTS. In the event of the voluntary or
involuntary liquidation, dissolution, distribution of assets or other winding
up of the Corporation, after distribution in full of preferential amounts, if
any, to be distributed to the holders of shares of Preferred Stock or any other
class or series of stock having a preference as to liquidating distributions
over the Class A Common Stock and the Class B Common Stock, the holders of the
Class A Common Stock and the Class B Common Stock shall be entitled to share
equally and ratably, share for share, in all of the remaining assets of the
Corporation, of whatever kind available for distribution to stockholders. A
consolidation or merger of the Corporation with or into any other corporation or
corporations shall not be deemed to be a liquidation, dissolution or winding-up
of the Corporation as those terms are used in this Section.
4. ACTION WITHOUT A MEETING. Except as provided in the
Certificate of Designation governing the Series B Preferred Stock and except for
actions of the Series B Preferred Stock and the Class B Common Stock voting
together in connection with the election or removal of directors pursuant to
Article V below, any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of stockholders of the Corporation and the ability of the
stockholders to consent in writing is hereby specifically denied.
5. VOLUNTARY CONVERSION INTO CLASS A COMMON STOCK. From and
after the Voting Restriction Termination Date, each share of Class B Common
Stock shall be convertible, at the option of the holder thereof, into one fully
paid and non-assessable share of Class A Common Stock. In addition, as to any
particular Investor, all but not less than all shares of Class B Common Stock
beneficially owned by such Investor shall be convertible, at the option of such
Investor, into the same number of fully paid and non-assessable shares of Class
A Common Stock, provided that at the time of conversion such Investor shall not
beneficially own any shares of Series B Preferred Stock, shall not have any
agreement or understanding with the other Investors as to the voting of their
shares of Preferred Stock or Common Stock, and shall so notify the Corporation
in writing. The holder of any shares of Class B Common Stock may exercise its
right to convert such shares into shares of Class A Common Stock by surrendering
for such purpose to the Corporation, at its principal office or at such other
office or agency maintained by the Corporation for that purpose, a certificate
or certificates representing the shares of Class B Common Stock to be converted
duly endorsed to the Corporation in blank accompanied by a written notice
stating that such holder elects to convert all or, if permitted by Section
IV(A)(5), a specified whole number of such shares in accordance with the
provisions of this Section IV(A)(5). The Corporation will pay any and all
documentary, stamp or similar issue or transfer
3
<PAGE>
tax and any other taxes that may be payable in respect of any issue or delivery
of shares of Class A Common Stock on conversion of Class B Preferred Stock
pursuant hereto. As promptly as practicable, and in any event within three
Business Days after the surrender of such certificate or certificates and the
receipt of such notice relating thereto and, if applicable, payment of all
transfer taxes (or the demonstration to the satisfaction of the Corporation that
such taxes are inapplicable), the Corporation shall deliver or cause to be
delivered (i) certificates registered in the name of such holder representing
the number of validly issued, fully paid and nonassessable full shares of Class
A Common Stock to which the holder of shares of Class B Common Stock so
converted shall be entitled and (ii) if less than the full number of shares of
Class B Common Stock evidenced by the surrendered certificate or certificates
are being converted, a new certificate or certificates, of like tenor, for the
number of shares evidenced by such surrendered certificate or certificates less
the number of shares converted. Such conversion shall be deemed to have been
made at the close of business on the date of receipt of such notice and of such
surrender of the certificate or certificates representing the shares of Class B
Common Stock to be converted so that the rights of the holder thereof as to the
shares being converted shall cease except for the right to receive shares of
Class A Common Stock, and the person entitled to receive the shares of Class A
Common Stock shall be treated for all purposes as having become the record
holder of such shares of Class A Common Stock at such time.
6. AUTOMATIC CONVERSION OF CLASS B COMMON STOCK. Each share of
Class B Common Stock shall automatically be converted into one fully paid and
non-assessable share of Class A Common Stock upon the sale or other transfer, by
operation of law or otherwise, of such share of Class B Common Stock to any
individual or entity other than an Investor (as defined in Article V below). Any
conversion pursuant to this Section IV(A)(6) shall be deemed to have been
effected at the time the transfer occurred (the "Conversion Time"). At the
Conversion Time, the certificate or certificates that represented immediately
prior thereto the shares of Class B Common Stock which were so converted (the
"Converted Class B Common Stock") shall, automatically and without further
action, represent the same number of shares of Class A Common Stock. Holders of
Converted Class B Common Stock shall deliver their certificates, duly endorsed
in blank or accompanied by proper instruments of transfer, to the principal
office of the Corporation or the office of any transfer agent for shares of the
Class B Common Stock, together with a written notice setting out the name or
names and denominations in which the certificate or certificates representing
such shares are to be issued and including instructions for delivery thereof.
Upon such delivery, the Corporation or its transfer agent shall promptly issue
and deliver a certificate or certificates representing the number of shares of
Class A Common Stock to which such holder of shares of Class B Common Stock is
entitled by reason of such conversion, and shall cause such shares of Class A
Common Stock to be registered in the name of such holder. The person entitled to
receive shares of Class A Common Stock issuable upon conversion shall be treated
for all purposes as the record holder of such shares of Class B Common Stock at
and as of the Conversion Time, and the rights of such person as a holder shares
of Class B Common Stock that have been converted shall cease and terminate at
and as of the Conversion Time. In the event of any proposed transfer to an
entity other than an Investor, the transferring Investor shall notify the
Corporation of the date of the proposed transfer at least
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three Business Days prior thereto, the number of shares of Class B Common Stock
to be so transferred and the identity of the transferee.
7. AUTOMATIC TERMINATION OF SEPARATE CLASSES OF COMMON STOCK.
At such time as there shall be no remaining outstanding shares of Series B
Preferred Stock or Class B Common Stock, the Class B Common Stock shall no
longer be an authorized class of Common Stock and the Class A Common Stock shall
be redenominated as the "Common Stock."
B. PREFERRED STOCK. The Preferred Stock may be issued from time to time
in one or more series, with such distinctive designations, rights and
preferences as shall be stated and expressed herein or in the resolution or
resolutions providing for the issue of shares of a particular series, and in
such resolution or resolutions providing for the issue of shares of such series,
the Board of Directors, or any duly authorized committee thereof, is expressly
authorized to fix or establish the basis for determining:
1. The annual or other periodic dividend rate for such series,
the dividend payment dates, the date from which dividends on all shares of such
series issued shall be cumulative, and the extent of participation rights, if
any;
2. The redemption price or prices, if any, for such series and
other terms and conditions on which such series may be retired and redeemed;
3. The obligation, if any, of the Corporation to purchase and
retire or redeem shares of such series as a sinking fund or otherwise, and the
terms and conditions of any such redemption;
4. The designation and maximum number of shares of such series
issuable;
5. The right to vote, if any, with holders of shares of any
other class or series, either generally or as a condition to specified corporate
action;
6. The amount payable upon shares in the event of involuntary
liquidation;
7. The amount payable upon shares in the event of voluntary
liquidation;
8. The rights, if any, of the holders of shares of such series
to convert such shares into other classes of stock of the Corporation, or to
exchange such shares for other securities or assets, and the terms and
conditions of any such conversion or exchange;
9. The preemptive or preferential right to purchase or
subscribe to any shares of any class or series of capital stock of the
Corporation; and
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10. Such other rights as may be specified by the Board of
Directors and not prohibited by law.
C. PREEMPTIVE RIGHTS. Other than as specifically authorized in the
certificate of designation establishing the terms of a series of Preferred Stock
or in an agreement approved by the Board of Directors, holders of shares of any
class or series of capital stock shall not be entitled to any preemptive or
preferential right to purchase or subscribe to (i) any shares of any class or
series of capital stock of the Corporation, whether now or hereafter authorized,
(ii) any warrants, rights or options to purchase any such capital stock or (iii)
any obligations convertible into any such capital stock or into warrants, rights
or options to purchase any such capital stock.
D. AMBIGUITY. In the case of an ambiguity in the application of the
provisions of this Article IV, the Board of Directors shall have the power to
determine the application of the provisions of this Article IV with respect to
any situation based on the facts known to it.
E. SEVERABILITY. Each provision of this Article IV shall be severable
and an adverse determination as to any such provision shall in no way affect the
validity of any other provision.
V.
DIRECTORS
A. DEFINED TERMS. The following defined terms shall have the meaning
specified below:
1. "Class A Director Nominating Committee" shall mean a
committee of the Board of Directors which consists of each of the Class C
Directors then in office and the same number (but not less than one) of Class A
Directors then in office (who shall be selected by a majority vote of the Class
A Directors then in office) for the purpose of nominating the Corporation's
nominees as Class A Directors.
2. "Class A Directors" shall mean those persons elected as the
initial Class A Directors pursuant to the Purchase Agreement and such other
persons elected as Class A Directors to the Board of Directors pursuant to
Section V(E) or Section V(H). The Corporation's nominees to be elected as Class
A Directors at any meeting of the Corporation's stockholders shall be selected
by the Class A Director Nominating Committee.
3. "Class B Directors" shall mean those persons elected as the
initial Class B Directors as contemplated by the Purchase Agreement and such
other persons as are elected as Class B Directors pursuant to Section V(E) or
Section V(H). The Corporation's nominees to be elected as Class B Directors at
any meeting of the Corporation's stockholders shall be selected by a nomination
committee composed solely of the Class B Directors then in office.
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4. "Class C Directors" shall mean those persons elected as the
initial Class C Directors as contemplated by the Purchase Agreement and such
other persons as are elected to the Board of Directors as Class C Directors
pursuant to Section V(E) or Section V(H), which directors shall not be employed
by any of the Class A Directors or the Class B Directors or be employed by the
employers or affiliates of any of the Class A Directors or the Class B
Directors, or have any economic relationship requiring disclosure under the
Exchange Act with any of the Class A Directors or the Class B Directors or the
employers or affiliates of any of the Class A Directors or the Class B
Directors. The Corporation's nominees to be elected as Class C Directors at any
meeting of the Corporation's stockholders shall be selected by a nomination
committee composed solely of the Class C Directors then in office.
5. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
6. "Investors" shall mean, collectively, Apollo Real Estate
Investment Fund III, L.P., Apollo Investment Fund IV, L.P., Thomas H. Lee Equity
Fund IV, L.P., Thomas H. Lee Foreign Fund IV, L.P., Thomas H. Lee Charitable
Investment L.P., THL-CCI Limited Partnership, Beacon Private Equity, Inc.,
Beacon Capital Partners, L.P. and Strategic Real Estate Investments I, L.L.C.,
together with each of their Permitted Assignees and Permitted Third Party
Transferees (as each such term is defined in the Purchase Agreement), and all of
their respective successors by operation of law.
7. "Purchase Agreement" shall mean the Securities Purchase
Agreement, dated as of February 18, 1999, which provides, among other things,
for the issuance of the Series B Preferred Stock.
8. "Voting Restriction Termination Date" shall mean the date
that is the earlier to occur of such time as (a) the Investors shall
beneficially own (as defined in Section 13(d) of the Exchange Act and the rules
thereunder) no shares of Series B Preferred Stock and less than 20% of the then
outstanding Common Stock or (b) any of the Series B Preferred Stock shall have
been called for redemption pursuant to the second sentence of Section 5(a) of
the Certificate of Designation governing the Series B Preferred Stock, provided
that at such time the Investors do not have any agreement or understanding among
them as to the mandatory voting of their shares of Preferred Stock or Common
Stock other than with respect to the election and removal of directors or the
selection or allocation of the Class B Directors.
B. GENERAL POWERS. Except as otherwise expressly provided in this
Certificate, the property, affairs and business of the Corporation shall be
managed under the direction of the Board of Directors and, except as otherwise
expressly provided by law, the By-Laws or this Certificate, all of the powers of
the Corporation shall be vested in such Board.
C. NUMBER OF DIRECTORS. The number of directors of the Corporation
shall be fixed initially at 19 and shall be subject to reduction as provided in
Section V(D), shall be subject to
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increase as provided in the terms of any Preferred Stock issued by the
Corporation and shall be subject to adjustment as otherwise may be determined by
unanimous approval of the Board of Directors then in office.
D. REDUCTION IN NUMBER OF CLASS B DIRECTORS. Notwithstanding the
foregoing, if: at any time (i) the Investors beneficially own shares of Common
Stock (including shares of Common Stock issuable upon conversion of securities
convertible, exchangeable or exercisable for shares of Common Stock)
representing less than 50% and at least 43.33% of the shares of Common Stock
issuable upon conversion of securities originally issued to the Investors, the
number of Class B Directors will be reduced to seven Class B Directors; (ii) the
Investors beneficially own shares of Common Stock (including shares of Common
Stock issuable upon conversion of securities convertible, exchangeable or
exercisable for shares of Common Stock) representing less than 43.33% and at
least 36.66% of Common Stock issuable upon conversion of securities originally
issued to the Investors, the number of Class B Directors will be reduced to six
Class B Directors; (iii) the Investors beneficially own shares of Common Stock
(including shares of Common Stock issuable upon conversion of securities
convertible, exchangeable or exercisable for shares of Common Stock)
representing less than 36.66% and at least 30.00% of the Common Stock issuable
upon conversion of the securities originally issued to the Investors, the number
of Class B Directors will be reduced to five Class B Directors; (iv) the
Investors beneficially own shares of Common Stock (including shares of Common
Stock issuable upon conversion of securities convertible, exchangeable or
exercisable for shares of Common Stock) representing less than 30.00% and at
least 23.33% of the Common Stock issuable upon conver sion of the securities
originally issued to the Investors, the number of Class B Directors will be
reduced to four Class B Directors; (v) the Investors beneficially own shares of
Common Stock (including shares of Common Stock issuable upon conversion of
securities convertible, ex changeable or exercisable for shares of Common Stock)
representing less than 23.33% and at least 16.66% of the Common Stock issuable
upon conversion of the securities originally issued to the Investors, the number
of Class B Directors will be reduced to three Class B Directors; (vi) the
Investors beneficially own shares of Common Stock (including shares of Common
Stock issuable upon conversion of securities convertible, exchangeable or
exercisable for shares of Common Stock) representing less than 16.66% and at
least 10.00% of the Common Stock issuable upon conversion of the securities
originally issued to the Investors, the number of Class B Directors will be
reduced to two Class B Directors; and (vii) the Investors beneficially own
shares of Common Stock (including shares of Common Stock issuable upon
conversion of securities convertible, exchangeable or exercisable for shares of
Common Stock) representing less than 10.00% of the Common Stock issuable upon
conversion of the securities originally issued to the Investors, the number of
Class B Directors will be reduced to zero Class B Directors. Any reduction in
the number of Class B Directors will reduce the number of total directors by the
same amount. A director need not be a stockholder of the Corporation. Within ten
business days after a transfer of shares of Common Stock (or securities
convertible, exchangeable or exercisable for Common Stock) of the Corporation
by any of the Investors to a person other than another Investor, the
transferring Investor will provide written notice of such transfer to the
Corporation, which notice shall state the identity of the transferee, the date
of the
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transfer, the number of shares transferred and the nature of any relationship
between the transferring Investor and the transferee; PROVIDED, that in the
event of such a transfer that would cause the number of Class B Directors to be
reduced in accordance with the foregoing schedule, neither such transfer nor
subsequent such transfers shall become effective unless and until such time as
the number of Class B Directors then in office shall be reduced in accordance
with the foregoing schedule, whether by resignation or otherwise.
E. ELECTION OF DIRECTORS
1. CLASS A DIRECTORS. Prior to each annual meeting of
stockholders, the Corporation's nominees for Class A Directors shall be
nominated by the Class A Director Nominating Committee. The Class A Directors
shall be elected (a) at all times prior to the Voting Restriction Termination
Date, by the holders of a plurality of the votes represented by the shares of
Class A Common Stock present in person or represented by proxy at such meeting
and entitled to vote on the election of Class A Directors and (b) at all times
from and after the Voting Restriction Termination Date, by the holders of a
plurality of the votes represented by the shares of the Class A Common Stock,
the Class B Common Stock and the Series B Preferred Stock, voting together as a
single class, present in person or represented by proxy at such meeting and
entitled to vote on the election of Class A Directors. Until the Classified
Board Sunset Date, each Class A Director so elected shall at the time of such
election be designated as a Class A-I Director, a Class A-II Director or a Class
A-III Director and shall hold office for a term expiring at the annual meeting
of stockholders determined as set forth in Section V(E)(4),
2. CLASS B DIRECTORS. Prior to each annual meeting of
stockholders, the Corporation's nominees for Class B Directors shall be
nominated by a majority of the Class B Directors then in office. The Class B
Directors shall be elected by the vote of holders of a plurality of the votes
represented by the shares of Series B Preferred Stock and Class B Common Stock,
voting together as a single class, present in person or by proxy at such meeting
and entitled to vote on the election of Class B Directors. Until the Classified
Board Sunset Date, each Class B Director so elected shall at the time of such
election be designated as a Class B-I Director, a Class B-II Director or a Class
B-III Director and shall hold office for a term expiring at the annual meeting
of stockholders determined as set forth in Section V(E)(4),
3. CLASS C DIRECTORS. Prior to each annual meeting of
stockholders, the Corporation's nominees for the Class C Directors shall be
nominated by vote of a majority of the Class C Directors then in office. The
Class C Directors shall be elected by the vote of holders of a plurality of the
votes represented by the shares of Class A Common Stock, Class B Common Stock
and Series B Preferred Stock, voting together as a single class, present in
person or represented by proxy at such meeting and entitled to vote on the
election of Class C Directors; PROVIDED that until the Voting Restriction
Termination Date, (i) in the event that the only persons nominated for election
as a Class C Director are those nominated for election by the Corporation, if
there shall be more votes against any person's election than in favor of such
person's election, then such person shall not be elected to the Board of
Directors and the position on the Board of
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Directors for which such person was nominated shall remain vacant, and (ii) in
the event that there are persons nominated for election as a Class C Director in
addition to those nominated for election by the Corporation, then all shares of
the Series B Preferred Stock and of the Class B Common Stock, and all shares of
Class A Common Stock held by Class A Directors or their affiliates voted at the
meeting, shall be voted in proportion to the votes cast for such persons by
other holders of the Class A Common Stock. Until the Classified Board Sunset
Date, each Class C Director so elected shall at the time of such election be
designated as a Class C-I Director, a Class C-II Director or a Class C-III
Director and shall hold office for a term expiring at the annual meeting of
stockholders determined as set forth in Section V(E)(4).
4. CLASSIFICATION BY TERM OF OFFICE. The Class A Directors
shall be divided into three classes, designated Class A-I, Class A-II and Class
A-III, with three Class A-I Directors, two Class A-II Directors and three Class
A-III Directors. The Class B Directors shall be divided into three classes,
designated Class B-I, Class B-II and Class B-III, with three Class B-1
Directors, two Class B-II Directors and three Class B-III Directors. The Class C
Directors shall be divided into three classes, designated Class C-I, Class C-II
and Class C-III, with one Class C-1 Director, one Class C-II Director and one
Class C-III Director. The term of the initial Class A-I, Class B-I and Class
C-I Directors shall terminate on the date of the annual meeting of stockholders
of the Corporation in 2000, the term of the initial Class A-II, Class B-II and
Class C-II Directors shall terminate on the date of the annual meeting of
stockholders of the Corpora tion in 2001 and the term of the initial Class
A-III, Class B-III and Class C-III Directors shall terminate on the date of the
annual meeting of stockholders of the Corporation in 2002. At the annual meeting
of stockholders of the Corporation in 2000, successors to the Class A-I, Class
B-I and Class C-I Directors whose terms expire at that annual meeting shall be
elected for a three year term. At the annual meeting of stockholders of the
Corporation in 2001, successors to the Class A-II, Class B-II and Class C-II
Directors whose terms expire at that annual meeting shall be elected for a two
year term. At each annual meeting of stockholders of the Corporation beginning
in 2002, successors to the directors whose terms expire at that annual meeting
shall be elected for a one year term. If the number of directors is changed, any
increase or decrease shall be appor tioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible, and any
additional directors of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with the
remaining term of that class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. A director shall hold
office until the annual meeting of stockholders for the year in which his term
expires and until his successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or removal
from office.
F. DIRECTORS ELECTED BY HOLDERS OF PREFERRED STOCK. Notwithstanding the
foregoing, whenever, pursuant to the provisions of Article IV, the holders of
any one or more series of Preferred Stock shall have the right, voting
separately as a series or together with holders of other such series, to elect
directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships shall be
governed by the terms of this Certificate and any certificates of designation
applicable thereto, and, other than the
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Class B Directors, such directors so elected shall not be divided into classes
pursuant to Section C of this Article V.
During any period when the holders of any series of Preferred Stock
have the right to elect additional directors as provided for or fixed pursuant
to the provisions of Article IV of this Certificate, then upon commencement and
for the duration of the period during which such right continues: (a) the then
otherwise total authorized number of directors of the Corporation shall
automatically be increased by such specified number of directors, and the
holders of such Preferred Stock shall be entitled to elect the additional
directors so provided for or fixed pursuant to said provisions and (b) each such
additional director shall serve until such director's successor shall have been
duly elected and qualified, or until such director's right to hold such office
terminates pursuant to said provisions, whichever occurs earlier, subject to
such director's earlier death, disqualification, resignation or removal. Except
as otherwise provided by the Board of Directors in the resolution or resolutions
establishing such series, whenever the holders of any series of Preferred Stock
having such right to elect additional directors are divested of such right
pursuant to the provisions of such stock, the terms of office of all such
additional directors elected by the holders of such stock, or elected to fill
any vacancies resulting from the death, resignation, disqualification or removal
of such additional directors, shall forthwith terminate and the total and
authorized number of directors of the Corporation shall be reduced accordingly.
G. REMOVAL OF DIRECTORS; QUALIFICATION. Subject to the rights, if any,
of any class or series of stock to elect directors and to remove any director
whom the holders of any such stock have the right to elect, any director
(including persons elected by directors to fill vacancies in the Board of
Directors) may be removed from office only by the affirmative vote of the
holders of at least a majority of the votes represented by the shares then
entitled to vote in the election of such director (with the Series B Preferred
Stock and Class B Common Stock subject to the same limitations on voting as in
the case of an election of directors). At least 30 days prior to any meeting of
stockholders at which it is proposed that any director be removed from office,
written notice of such proposed removal shall be sent to the director whose
removal will be considered at the meeting.
H. VACANCIES. Subject to the rights, if any, of the holders of any
class or series of stock to elect directors and to fill vacancies in the Board
of Directors relating thereto, any and all vacancies in the Board of Directors,
however occurring, including, without limitation, by reason of an increase in
the size of the Board of Directors, or the death, resignation, disqualification
or removal of a director, shall be filled (i) in the case of the Class A
Directors, either (A) by the nomination by the Class A Director Nominating
Committee and election by the same stockholder
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vote as is required for the election of Class A Directors or (B) by the vote of
a majority of all of the remaining Class A Directors then in office, (ii) in the
case of the Class B Directors, either (A) by the nomination by a majority of the
remaining Class B Directors and election by the same stockholder vote as is
required for the election of Class B Directors or (B) by the vote of a majority
of all of the remaining Class B Directors then in office, and (iii) in the case
of the Class C Directors, either (A) by the nomination by a majority of the
remaining Class C Directors and selection by the same stockholder action as is
required for the election of Class C Directors or (B) by the unanimous vote of
all the Class C directors then in office. Any director elected in accordance
with the preceding sentence shall hold office for the remainder of the full term
of the class of directors in which the new directorship was created or the
vacancy occurred and until such director's successor shall have been duly
elected and qualified or until such director's earlier resignation or removal.
Subject to the rights, if any, of the holders of any series of Preferred Stock,
when the number of directors is increased or decreased, the Board of Directors
shall determine the class or classes to which the increased or decreased number
of directors shall be apportioned; provided, however, that no decrease in the
number of directors shall shorten the term of any incumbent director. In the
event of a vacancy in the Board of Directors, the remaining directors, except as
otherwise provided by law, may exercise the powers of the full Board of
Directors until such vacancy is filled.
I. POWER OF DIRECTORS. Any decision pursuant to the Shareholder Rights
Agreement, dated as of June 29, 1999 between the Corporation and American Stock
Transfer and Trust Company, a New York corporation, or any successor agreement
thereto, made by a majority of a specified group or groups of directors which
group or groups do not include all of the directors of the Corporation shall be
valid notwithstanding the provisions of Section 141 of the DGCL.
VI.
LIMITATION OF LIABILITY
No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director or as such a member, except for liability (a) for any breach
of the director's duty of loyalty to the Corporation or its stockholders, (b)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (c) under Section 174 of the DGCL or (d) for any
transaction from which the director derived an improper personal benefit. If the
DGCL is amended after the effective date of this Certificate to authorize
corporate action further eliminat ing or limiting the personal liability of
directors or the person or persons exercising or perform ing any of the powers
or duties otherwise conferred or imposed upon directors of the Corpora tion,
then the liability of the director of the Corporation or the person or persons
exercising or performing any of the powers or duties otherwise conferred or
imposed upon directors of the Corporation shall be eliminated or limited to the
fullest extent permitted by the DGCL, as so amended.
Any amendment or repeal of this Article VI by either (i) the
stockholders of the Corpora tion or (ii) an amendment to the DGCL shall not
adversely affect any right or protection existing at the time of such amendment
or repeal with respect to any acts or omissions occurring before such amendment
or repeal of a person serving as a director at the time of such amendment or
repeal.
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VII.
INDEMNIFICATION
A. GENERAL RIGHT TO INDEMNIFICATION. The Corporation shall
indemnify its directors and officers to the fullest extent authorized or
permitted by law, as now or hereafter in effect, and such right to
indemnification shall continue as to a person who has ceased to be a director or
officer of the Corporation and shall inure to the benefit of his or her heirs,
executors and personal and legal representatives; provided, however, that,
except for proceedings to enforce rights to indemnification, the Corporation
shall not be obligated to indemnify any director or officer (or his or her
heirs, executors or personal or legal representatives) in connec tion with a
proceeding (or part thereof) initiated by such person unless such proceeding (or
part thereof) was authorized or consented to by the Board of Directors. The
right to indemnification conferred by this Article VII shall include the right
to be paid by the Corporation the expenses incurred in defending or otherwise
participating in any proceeding in advance of its final disposition. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the Corporation similar to those conferred in this
Article VII to directors and officers of the Corporation. The rights to
indemnification and to the advance of expenses conferred in this Article VII
shall not be exclusive of any other right which any person may have or hereafter
acquire under this Certificate of Incorporation, the Bylaws of the Corporation,
any statute, agreement, vote of stockholders or disinterested directors or
otherwise.
B. AMENDMENT OR REPEAL. So long as the Investors as holders of
Series B Preferred Stock or Class B Common Stock are entitled to have at least
two Class B Directors on the Board of Directors, this Article VII may only be
amended or repealed with the affirmative vote of a majority of the Class B
Directors. Further, any amendment or repeal of this Article VII by the
stockholders of the Corporation shall not adversely affect any rights to
indemnification and to the advancement of expenses of a director or officer of
the Corporation existing at the time of such amendment or repeal with respect to
any acts or omissions occurring prior to such amendment or repeal.
VIII.
AMENDMENT OF BYLAWS
A. AMENDMENT BY THE BOARD OF DIRECTORS. Except as otherwise provided by
law or this Certificate, the Bylaws of the Corporation may be amended or
repealed by the Board of Directors by the affirmative vote of a majority of the
directors then in office.
B. AMENDMENT BY THE STOCKHOLDERS. The Bylaws of the Corporation may be
amended or repealed at any annual meeting of stockholders,
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or special meeting of stockholders called for such purpose, by the affirmative
vote of the majority of the shares present in person or represented by proxy at
such meeting and entitled to vote on such amendment or repeal, voting together
as a single class.
IX.
AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Restated Certificate of Incorporation in the
manner now or hereafter prescribed in this Restated Certificate of
Incorporation, the Corporation's Bylaws or as otherwise provided by law, and all
rights herein conferred upon stockholders are granted subject to such
reservation.
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I, James D. Carreker, Chief Executive Officer of the Corporation, for
the purpose of amending and restating the Corporation's Certificate of
Incorporation pursuant to the General Corporation Law of the State of Delaware,
do make this certificate, hereby declaring and certifying that this is my act
and deed on behalf of the Corporation this day of the 29th of June, 1999.
------------------------------------
James D. Carreker
Chief Executive Officer
<PAGE>
EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
WYNDHAM INTERNATIONAL, INC.
ARTICLE I.
DEFINITIONS
For purposes of these Bylaws, the following words shall have the
meanings set forth below:
(a) "Certificate" shall mean the Restated Certificate of
Incorporation of the Corporation, as amended from time to time, including any
Certificates of Designation for any series of stock of the Corporation.
(b) "Corporation" shall mean Wyndham International, Inc.
(formerly "Patriot American Hospitality Operating Company").
(c) "DGCL" shall mean the Delaware General Corporation Law, as
amended from time to time.
(d) "Public Announcement" shall mean: (i) disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service, (ii) a report or other document filed publicly
with the Securities and Exchange Commission (including, without limitation, a
Form 8-K) or (iii) a letter or report sent to stockholders of record of the
Corporation at the time of the mailing of such letter or report.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
2.1 PLACES OF MEETINGS. All meetings of the stockholders shall be held
at such place, either within or without the State of Delaware, as from time to
time may be fixed by the Board of Directors.
2.2 ANNUAL MEETINGS. The annual meeting of the stockholders, for the
election of directors and transaction of such other business as may come
properly
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before the meeting, shall be held at such date and time as shall be determined
by the Board of Directors.
2.3 SPECIAL MEETINGS. A special meeting of the stockholders for any
purpose or purposes may be called at any time only by the Chairman of the Board,
the Chief Executive Officer or by a majority of the Board of Directors. At a
special meeting no business shall be transacted and no corporate action shall be
taken other than that stated in the notice of the meeting.
2.4 NOTICE OF MEETINGS: ADJOURNMENTS. A written notice of each annual
meeting stating the hour, date and place of such annual meeting shall be given
by the Secretary or an Assistant Secretary of the Corporation (or other person
authorized by these Bylaws or by law) not less than 10 days nor more than 60
days before the annual meeting, to each stockholder entitled to vote thereat and
to each stockholder who, by law or under the Certificate or under these Bylaws,
is entitled to such notice, by delivering such notice to him or her or by
mailing it, postage prepaid, addressed to such stockholder at the address of
such stockholder as it appears on the stock transfer books of the Corporation.
Such notice shall be deemed to be delivered when hand delivered to such address
or deposited in the mail so addressed, with postage prepaid.
Notice of all special meetings of stockholders shall be given in the
same manner as provided for annual meetings, except that the written notice of
all special meetings shall state the purpose or purposes for which the meeting
has been called.
Notice of an annual meeting or special meeting of stockholders need not
be given to a stockholder if a written waiver of notice is signed before or
after such meeting by such stockholder or if such stockholder attends such
meeting, unless such attendance was for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting
was not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any annual meeting or special meeting of stockholders need
be specified in any written waiver of notice.
The Board of Directors may postpone and reschedule any previously sched
uled annual meeting or special meeting of stockholders and any record date with
respect thereto, regardless of whether any notice or public disclosure with
respect to any such meeting has been sent or made pursuant to this Section 2.4
or otherwise. In no event shall the Public Announcement of an adjournment,
postponement or rescheduling of any previously scheduled meeting of stockholders
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commence a new time period for the giving of a stockholder's notice under
Section 2.9 of these Bylaws.
When any meeting is convened, the presiding officer of the meeting may
adjourn the meeting if (a) no quorum is present for the transaction of business,
(b) the Board of Directors determines that adjournment is necessary or
appropriate to enable the stockholders to consider fully information that the
Board of Directors determines has not been made sufficiently or timely available
to stockholders or (c) the Board of Directors determines that adjournment is
otherwise in the best interests of the Corporation. When any annual meeting or
special meeting of stockholders is adjourned to another hour, date or place,
notice need not be given of the adjourned meeting, other than an announcement at
the meeting at which the adjournment is taken, of the hour, date and place to
which the meeting is adjourned; PROVIDED HOWEVER, that if the adjournment is for
more than 30 days, or if after the adjournment a new record date is fixed for
the adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote thereat and each stock holder who, by law
or under the Certificate or under these Bylaws, is entitled to such notice.
2.5 QUORUM. Except as otherwise required by the Certificate, any number
of stockholders together holding at least a majority of the outstanding shares
of capital stock entitled to vote with respect to the business to be transacted,
who shall be present in person or represented by proxy at any meeting duly
called, shall constitute a quorum for the transaction of business. If less than
a quorum shall be in attendance at the time for which a meeting shall have been
called, the meeting may be adjourned from time to time by a majority of the
stockholders present or repre sented by proxy.
2.6 VOTING AND PROXIES. Unless otherwise provided in the Certificate or
by law, stockholders shall have one vote for each share of stock entitled to
vote owned by them of record according to the stock transfer books of the
Corporation. Stockholders may vote either in person or by written proxy, but no
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period. Proxies shall be filed with the secretary of
the meeting before being voted. Except as otherwise limited therein or as
otherwise provided by law, proxies shall entitle the persons authorized thereby
to vote at any adjournment of such meeting, but they shall not be valid after
final adjournment of such meeting. A proxy with respect to stock held in the
name of two or more persons shall be valid if executed by or on behalf of any
one of them unless at or prior to the exercise of the proxy the Corporation
receives a specific written notice to the contrary from any one
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of them. A proxy purporting to be executed by or on behalf of a stockholder
shall be deemed valid, and the burden of proving invalidity shall rest on the
challenger.
2.7 ACTION AT MEETING. When a quorum is present, any matter before any
meeting of stockholders shall be decided by the affirmative vote of the majority
of shares present in person or represented by proxy at such meeting and entitled
to vote on such matter, except where a larger vote is required by law, by the
Certificate or by these Bylaws. Any election of any director by stockholders
shall be determined by a plurality of the votes of the shares present in person
or represented by proxy at the meeting and entitled to vote on the election of
such director, except where a larger vote is required by law, by the Certificate
or by these Bylaws. The Corporation shall not directly or indirectly vote any
shares of its own stock; PROVIDED, HOWEVER, that the Corporation may vote shares
which it holds in a fiduciary capacity to the extent permitted by law.
2.8 STOCKHOLDER LIST. The officer or agent having charge of the stock
transfer books of the Corporation shall make, at least 10 days before every
annual meeting or special meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting or any adjournment thereof, in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
for the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least 10 days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the hour, date and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present.
2.9 STOCKHOLDER PROPOSALS. No business may be transacted at an annual
meeting of stockholders, other than business that is either (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors (or any duly authorized committee thereof), (b) otherwise
properly brought before the annual meeting by or at the direction of the Board
of Directors (or any duly authorized committee thereof) or (c) otherwise
properly brought before the annual meeting by any stockholder of the Corporation
(i) who is a stockholder of record on the date of the giving of the notice
provided for in this Section 2.9 and on the record date for the determination of
stockholders entitled to vote at such annual meeting and who is otherwise
entitled to vote at the meeting and (ii) who complies with the notice procedures
set forth in this Section 2.9. In addition to any other applicable requirements,
for business to be properly brought before an annual meeting by a stockholder,
such stockholder must have given timely notice thereof in
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proper written form to the Secretary of the Corporation. A stockholder's notice
shall be timely if delivered to, or mailed to and received by, the Corporation
at its princi pal executive office not less than 75 days nor more than 105 days
prior to the anniversary date of the immediately preceding annual meeting (the
"Anniversary Date"); PROVIDED, HOWEVER, that in the event the annual meeting is
scheduled to be held on a date that is not within 30 days before or 60 days
after the Anniversary Date, a stockholder's notice shall be timely if delivered
to, or mailed to and received by, the Corporation at its principal executive
office not later than the close of business on the 10th day following the day on
which Public Announcement of the date of such annual meeting is first made by
the Corporation.
A stockholder's notice to the Secretary of the Corporation shall set
forth as to each matter proposed to be brought before an annual meeting: (i) a
brief description of the business the stockholder desires to bring before such
annual meeting and the reasons for conducting such business at such annual
meeting, (ii) the name and address, as they appear on the stock transfer books
of the Corporation, of the stockholder proposing such business, (iii) the class
and number of shares of the capital stock of the Corporation beneficially owned
by the stockholder proposing such business, (iv) the names and addresses of the
beneficial owners, if any, of any capital stock of the Corporation registered in
such stockholder's name on such books, and the class and number of shares of the
capital stock of the Corporation benefi cially owned by such beneficial owners,
(v) a description of all arrangements or understandings between such stockholder
and any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business, (vi) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting and (vii) any material interest of the stockholder
proposing to bring such business before such meeting (or any other stockholders
known to be supporting such proposal) in such proposal.
If the Board of Directors or a designated committee thereof determines
that any stockholder proposal was not made in a timely fashion in accordance
with the provisions of this Section 2.9 or that the information provided in a
stockholder's notice does not satisfy the information requirements of this
Section 2.9 in any material respect, such proposal shall not be presented for
action at the annual meeting in question. If neither the Board of Directors nor
such committee makes a determination as to the validity of any stockholder
proposal in the manner set forth above, the presiding officer of the annual
meeting shall determine whether the stockholder proposal was made in accordance
with the terms of this Section 2.9. If the presiding officer determines that any
stockholder proposal was not made in a timely fashion in accordance with the
provisions of this Section 2.9 or that the
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information provided in a stockholder's notice does not satisfy the information
requirements of this Section 2.9 in any material respect, such proposal shall
not be presented for action at the annual meeting in question. If the Board of
Directors, a designated committee thereof or the presiding officer determines
that a stockholder proposal was made in accordance with the requirements of this
Section 2.9, the presiding officer shall so declare at the annual meeting and
ballots shall be provided for use at the meeting with respect to such proposal.
Notwithstanding the foregoing provisions of this Section 2.9, a
stockholder shall also comply with all applicable requirements of the Exchange
Act, and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.9, and nothing in this Section 2.9 shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
2.10 INSPECTORS OF ELECTIONS. The Corporation shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at the meeting
and make a written report thereof. The Corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the
presiding officer shall appoint one or more inspectors to act at the meeting.
Any inspector may, but need not, be an officer, employee or agent of the
Corporation. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall perform such duties as are required by the DGCL,
including the counting of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors. The presiding officer may review all
determinations made by the inspectors, and in so doing the presiding officer
shall be entitled to exercise his or her sole judgment and discretion and he or
she shall not be bound by any determinations made by the inspectors. All
determinations by the inspectors and, if applicable, the presiding officer,
shall be subject to further review by any court of competent jurisdiction.
2.11 PRESIDING OFFICER. The Chairman of the Board, if one is elected,
or if not elected or in his or her absence, the Chief Executive Officer, shall
preside at all annual meetings or special meetings of stockholders and shall
have the power, among other things, to adjourn such meeting at any time and from
time to time, subject to Sections 2.4 and 2.5 of this Article II. The order of
business and all other matters of procedure at any meeting of the stockholders
shall be determined by the presiding officer.
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ARTICLE III.
DIRECTORS
3.1 GENERAL POWERS. The property, affairs and business of the Corpora
tion shall be managed under the direction of the Board of Directors and, except
as otherwise expressly provided by law, the Certificate or these Bylaws, all of
the powers of the Corporation shall be vested in such Board.
3.2 NUMBER OF DIRECTORS. The number of directors of the Corporation
shall be fixed pursuant to the Certificate.
3.3 ELECTION AND REMOVAL OF DIRECTORS; QUORUM.
(a) Directors shall be elected by a plurality of the votes cast in
the manner provided for in Article V of the Certificate.
(b) Any and all vacancies in the Board of Directors, however
occurring, including, without limitation, by reason of an increase in the size
of the Board of Directors, or the death, resignation, disqualification or
removal of a director, shall be filled in the manner set forth in the
Certificate. Notwithstanding the foregoing, in order to fulfill the Company's
obligations under the Securities Purchase Agreement, dated as of February 18,
1999 and amended on June 28, 1999 (the "Purchase Agreement"), the existing
directors shall, in accordance with the Purchase Agreement, fill the vacancies
initially created by the filing of the Certificate.
(c) Unless otherwise provided for by law or in the Certificate, any
director (including persons elected by directors to fill vacancies in the Board
of Directors) may be removed from office only by the affirmative vote of the
holders of at least a majority of the votes represented by the shares then
entitled to vote in the election of such director.
(d) At any meeting of the Board of Directors, a majority of the
number of directors then in office shall constitute a quorum for the transaction
of business. However, if less than a quorum is present at a meeting, a majority
of the directors present may adjourn the meeting from time to time, and the
meeting may be held as adjourned without further notice, except that when any
meeting of the Board of Directors, either regular of special, is adjourned for
30 days or more, notice of the adjourned meeting shall be give as in the case of
the original meeting.
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3.4 MEETINGS OF DIRECTORS. Subject to the provisions of the
Certificate, meetings of the Board of Directors shall be held at places within
or without the State of Delaware and at times fixed by resolution of the Board
of Directors, or upon call of the Chairman of the Board or the Chief Executive
Officer and the Secretary of the Corporation or officer performing the
Secretary's duties shall give not less than 24 hours' notice by letter,
facsimile, telegraph or telephone (or in person) of all meetings of the Board of
Directors, provided that notice need not be given of the annual meeting or of
regular meetings held at times and places fixed by resolution of the Board of
Directors. Subject to the provisions of the Certificate, meetings may be held at
any time without notice if all of the directors are present, or if those not
present waive notice in writing either before or after the meeting; PROVIDED,
HOWEVER, that attendance at a meeting for the express purpose of objecting at
the beginning of a meeting to the transaction of any business because the
meeting is not lawfully convened shall not be considered a waiver of notice.
3.5 NOMINATIONS. Nominations of candidates for election as directors of
the Corporation at any annual meeting may be made only (a) in the manner
provided for in Article V of the Certificate, or (b) by any holder of record
(both as of the time notice of such nomination is given by the stockholder as
set forth below and as of the record date for the annual meeting in question) of
any shares of the capital stock of the Corporation entitled to vote at such
annual meeting who complies with the timing, informational and other
requirements set forth in this Section 3.5. Only persons nominated in accordance
with clause (a) of the preceding sentence or the procedures set forth in this
Section 3.5 shall be eligible for election as directors at an annual meeting.
Nominations, other than those made in the manner provided for in
Article V of the Certificate shall be made pursuant to timely notice in writing
to the Secretary of the Corporation as set forth in this Section 3.5. A
stockholder's notice shall be timely if delivered to, or mailed to and received
by, the Corporation at its principal executive offices of the Corporation (a) in
the case of an annual meeting, not less than 75 days nor more than 105 days
prior to the anniversary date of the immediately preceding annual meeting of
stockholders; PROVIDED, HOWEVER, that in the event that the annual meeting is
called for a date that is not within 30 days before or 60 days after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the 10th day following the day
on which such notice of the date of the annual meeting was mailed or Public
Announce ment of the date of the annual meeting was made, whichever first
occurs; and (b) in the case of a special meeting of stockholders called for the
purpose of electing directors, not later than the close of business on the 10th
day following the
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day on which such notice of the date of the special meeting was mailed or Public
Announce ment of the date of the special meeting was made, whichever first
occurs.
A stockholder's notice to the Secretary of the Corporation shall set
forth as to each person whom the stockholder proposes to nominate for election
or re-election as a director: (1) the name, age, business address and residence
address of such person; (2) the principal occupation or employment of such
person; (3) the class and number of shares of the capital stock of the
Corporation which are beneficially owned by such person on the date of such
stockholder notice; and (4) any other information relating to the person that
would be required to be disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. A stockholder's notice to the Secretary of the
Corporation shall further set forth as to the stockholder giving such notice:
(1) the name and address, as they appear on the stock transfer books of the
Corporation, of such stockholder and of the beneficial owners (if any) of the
capital stock of the Corporation registered in such stockholder's name and the
name and address of other stockholders known by such stockholder to be
supporting such nominee(s); (2) the class and number of shares of the capital
stock of the Corporation which are held of record, beneficially owned or
represented by proxy by such stockholder and by any other stockholders known by
such stockholder to be supporting such nominee(s) on the record date for the
annual meeting in question (if such date shall then have been made publicly
available) and on the date of such stockholder's notice; (3) a descrip tion of
all arrangements or understandings between such stockholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by such stockholder and (4) any
other information relating to such stockholder that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Ex change Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve as a director if
elected.
If the Board of Directors or a designated committee thereof determines
that any stockholder nomination was not made in accordance with the terms of
this Section 3.5 or that the information provided in a stockholder's notice does
not satisfy the informational requirements of this Section 3.5 in any material
respect, then such nomination shall not be considered at the annual meeting in
question. If neither the Board of Directors nor such committee makes a
determination as to whether a nomination was made in accordance with the
provisions of this Section 3.5, the presiding officer of the annual meeting
shall determine whether a nomination was
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made in accordance with such provisions. If the presiding officer determines
that any stockholder nomination was not made in accordance with the terms of
this Section 3.5 or that the information provided in a stockholder's notice does
not satisfy the informational requirements of this Section 3.5 in any material
respect, then such nomination shall not be considered at the annual meeting in
question. If the Board of Directors, a designated committee thereof or the
presiding officer determines that a nomination was made in accordance with the
terms of this Section 3.5, the presiding officer shall so declare at the annual
meeting and ballots shall be provided for use at the meeting with respect to
such nominee.
Notwithstanding anything to the contrary in the second paragraph of
this Section 3.5, in the event that the number of directors to be elected to the
Board of Directors is increased and there is no Public Announcement by the
Corporation naming all of the nominees for director or specifying the size of
the increased Board of Directors at least 90 days prior to the Anniversary Date,
a stockholder's notice required by this Section 3.5 shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if such notice shall be delivered to, or mailed to and received by,
the Corporation at its principal executive office not later than the close of
business on the 10th day following the day on which such Public Announcement is
first made by the Corporation.
No person shall be elected by the stockholders as a director of the
Corpora tion unless nominated in accordance with the procedures set forth in
this Section 3.5. Election of directors at an annual meeting need not be by
written ballot, unless otherwise provided by the Board of Directors or presiding
officer at such annual meeting. If written ballots are to be used, ballots
bearing the names of all the persons who have been nominated for election as
directors at the annual meeting in accor dance with clause (a) of the first
sentence of this Section 3.5 or the procedures set forth in this Section 3.5
shall be provided for use at the annual meeting.
3.6 VOTING.
(a) The action of the majority of the directors present at a
meeting at which a quorum is present shall be the action of the Board of
Directors, unless a larger vote is required for such action by the Certificate,
these Bylaws or by law.
(b) Any action required or permitted to be taken at any meeting of
the Board of Directors may be taken without a meeting if all members of the
Board of Directors consent thereto in writing. Such written consent shall be
filed with the records of the meetings of the Board of Directors and shall be
treated for all purposes as a vote at a meeting of the Board of Directors.
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3.7 MANNER OF PARTICIPATION. Directors may participate in meetings of
the Board of Directors by means of conference telephone or similar
communications equipment by means of which all directors participating in the
meeting can hear each other, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting for purposes of
these Bylaws.
3.8 COMPENSATION. By resolution of the Board of Directors, directors
may be allowed a fee and expenses for attendance at all meetings, but nothing
herein shall preclude directors from serving the Corporation in other capacities
and receiving compensation for such other services.
ARTICLE IV.
COMMITTEES
In addition to such committees as may be established by the Certificate
and subject to the provisions of the Certificate, the Board of Directors may, by
resolution duly adopted, establish one or more standing or special committees of
the Board of Directors as it may deem advisable, and the members, terms and
authority of such committees shall be set forth in the resolutions establishing
the same.
ARTICLE V.
OFFICERS
5.1 ELECTION OF OFFICERS; TERMS. Subject to the provisions of the
Certifi cate, the officers of the Corporation shall be elected by the Board of
Directors and shall include a Chief Executive Officer, a President, one or more
Vice Presidents, a Secretary and a Treasurer or a Chief Financial Officer. Other
officers, including Chairman of the Board, Executive Vice Presidents and Senior
Vice Presidents, may be elected by the Board of Directors, and assistant and
subordinate officers may from time to time be elected by the Board of Directors.
Subject to the provisions of the Certificate, all officers shall hold office
until the next annual meeting of the Board of Directors and until their
successors are duly elected and qualified. The Chairman of the Board shall be
chosen from among the directors. Any two officers may be combined in the same
person as the Board of Directors may determine.
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5.2 REMOVAL OF OFFICERS; VACANCIES. Subject to the provisions of the
Certificate, any officer of the Corporation may be removed with or without
cause, at any time, by the Board of Directors. Vacancies shall be filled by the
Board of Directors.
5.3 DUTIES. The officers of the Corporation shall have such duties as
generally pertain to their offices, respectively, as well as such powers and
duties as are prescribed by law or are hereinafter provided or as from time to
time shall be conferred by the Board of Directors or as provided in the
Certificate. The Board of Directors may require any officer to give such bond
for the faithful performance of his or her other duties as the Board of
Directors may see fit.
5.4 DUTIES OF THE CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors, if there be one, shall preside at all meetings of the stockholders
and of the Board of Directors. The Chairman of the Board of Directors shall also
perform such other duties and may exercise such other powers as from time to
time may be assigned to him or her by these Bylaws or by the Board of Directors.
5.5 DUTIES OF THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
of the Corporation shall be responsible for the execution of the policies of the
Board of Directors, shall serve as the Chairman of the Executive Committee (if
one is estab lished) and shall have direct supervision over the business of the
Corporation and its several officers, subject to the ultimate authority of the
Board of Directors. He or she shall be a director, and, except as otherwise
provided in these Bylaws or in the resolutions establishing such committees or
as provided in the Certificate, he or she shall be EX OFFICIO a member of all
committees of the Board of Directors. He or she may sign and execute in the name
of the Corporation share certificates, deeds, mortgages, bonds, contracts or
other instruments except in cases where the signing and the execution thereof
shall be expressly delegated by the Board of Directors or by these Bylaws to
some other officer or agent of the Corporation or shall be required by law
otherwise to be signed or executed. In addition, he or she shall perform all
duties incident to the office of the Chief Executive Officer and such other
duties as from time to time may be assigned to him or her by the Board of
Directors.
5.6 DUTIES OF THE PRESIDENT. Unless the Board of Directors, by
resolution duly adopted, designates some other person to serve as the Chief
Operating Officer of the Corporation, the President shall serve as Chief
Operating Officer and shall have direct supervision over the business of the
Corporation and its several officers, subject to the authority of the Board of
Directors and the Chairman of the Board, and shall consult with and report to
the aforementioned officer. The President may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts or
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other instruments, except in cases where the signing and the execution thereof
shall be expressly delegated by the Board of Directors or by these Bylaws to
some other officer or agent of the Corporation or shall be required by law
otherwise to be signed or executed. In addition, he or she shall perform all
duties incident to the office of the President and such other duties as from
time to time may be assigned to him or her by the Board of Directors or the
Chairman of the Board.
5.7 DUTIES OF THE VICE PRESIDENTS. Each Vice President, if any, shall
have such powers and duties as may from time to time be assigned to him or her
by the Chairman of the Board or the Board of Directors. When there shall be more
than one Vice President of the Corporation, the Board of Directors may from time
to time designate one of them to perform the duties of the President in the
absence of the President. Any Vice President may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts or other instruments
authorized by the Board of Directors, except where the signing and execution of
such documents shall be expressly delegated by the Board of Directors or the
Chairman of the Board to some other officer or agent of the Corporation or shall
be required by law or otherwise to be signed or executed.
5.8 DUTIES OF THE TREASURER OR CHIEF FINANCIAL OFFICER. The Treasurer
or Chief Financial Officer shall have charge and custody of and be responsible
for all funds and securities of the Corporation, and shall cause all such funds
and securities to be deposited in such banks and depositories as shall be
designated by the Board of Directors. He or she shall be responsible (i) for
maintaining adequate financial accounts and records in accordance with generally
accepted accounting practices, (ii) for the preparation of appropriate operating
budgets and financial statements, (iii) for the preparation and filing of all
tax returns required by law and (iv) for the perfor mance of all duties incident
to the office of Treasurer of Chief Financial Officer and such other duties as
from time to time may be assigned to him or her by the Board of Directors, the
Audit Committee or the Chairman of the Board. The Treasurer or Chief Financial
Officer may sign and execute in the name of the Corporation share certificates,
deeds, mortgages, bonds, contracts or other instruments, except where the
signing and execution of such documents shall be expressly delegated by the
Board of Directors or the Chairman of the Board to some other officer or agent
of the Corporation or shall be required by law or otherwise to be signed or
executed.
5.9 DUTIES OF THE SECRETARY. The Secretary shall act as secretary of
all meetings of the Board of Directors, all committees of the Board of Directors
and stockholders of the Corporation. He or she shall (i) keep and preserve the
minutes of all such meetings in permanent books, (ii) ensure that all notices
required to be given
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by the Corporation are duly given and served, (iii) have custody of the seal of
the Corporation and shall affix the seal or cause it to be affixed to all share
certificates of the Corporation and to all documents the execution of which on
behalf of the Corporation under its corporate seal is duly authorized in
accordance with law or the provisions of these Bylaws, (iv) have custody of all
deeds, leases, contracts and other important corporate documents, (v) have
charge of the books, records and papers of the Corporation relating to its
organization and management as a Corporation, (vi) see that all reports,
statements and other documents required by law (except tax returns) are properly
filed and (vii) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him or
her by the Board of Directors or the Chairman of the Board.
ARTICLE VI.
CAPITAL STOCK
6.1 CERTIFICATES. Each stockholder shall be entitled to a certificate
of the capital stock of the Corporation in such form as may from time to time be
prescribed by the Board of Directors. Such certificate shall be signed by the
Chairman of the Board; the President or a Vice President and by the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary. The
Corporation seal and the signatures by the Corporation's officers, the transfer
agent or the registrar may be facsimiles. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed on such
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, the certificate may be issued by the
Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the time of its issue. Every certificate for shares of
stock which are subject to a restriction on transfer (as provided in Article IV
of the Certificate) and every certificate issued when the Corporation is
authorized to issue more than one class or series of stock shall contain such
legend with respect thereto as is required by law.
6.2 LOST, DESTROYED AND MUTILATED CERTIFICATES. Holders of the shares
of the Corporation shall immediately notify the Corporation of any loss,
destruction or mutilation of the certificate therefor, and the Board of
Directors may in its discretion cause one or more new certificates for the same
number of shares in the aggregate to be issued to such stockholder upon the
surrender of the mutilated certificate or upon satisfactory proof of such loss
or destruction, and the deposit of a bond in such form and amount and with such
surety as the Board of Directors may require.
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6.3 TRANSFER OF STOCK. The stock of the Corporation shall be
transferable or assignable only on the stock transfer books of the Corporation
by the holder in person or by attorney on surrender of the certificate for such
shares duly endorsed and, if sought to be transferred by attorney, accompanied
by a written power of attorney to have the same transferred on the stock
transfer books of the Corporation. The Corporation will recognize, however, the
exclusive right of the person registered on its stock transfer books as the
owner of shares to receive dividends and to vote as such owner.
6.4 FIXING RECORD DATE. For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend, or to make
a determination of stockholders for any other proper purpose, the Board of
Directors may fix in advance a date as the record date for any such
determination of stockholders, such date in any case to be not less than 10 nor
more than 60 days prior to the date on which the particular action requiring
such determination of stockholders, is to be taken. If no record date is fixed
for the determination of stockholders entitled to notice of or to vote at a
meeting of stockholders, or stockholders entitled to receive payment of a
dividend, the date on which notices of the meeting are mailed or the date on
which the resolution of the Board of Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such determination of
stockholders. When a determination of stockholders entitled to notice of or to
vote at any meeting of stockholders has been made as provided in this section,
such determination shall apply to any adjournment thereof.
ARTICLE VII.
INDEMNIFICATION
7.1 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDING OTHER THAN THOSE
BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 7.3 of this Article
VII, the Corporation shall indemnify to the fullest extent authorized or
permitted by law, as now or hereafter in effect, any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director or officer, partner,
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trustee, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding.
7.2 POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDING BY OR IN THE
RIGHT OF THE CORPORATION. Subject to Section 7.3 of this Article VII, the
Corporation shall indemnify to the fullest extent authorized or permitted by
law, as now or hereafter in effect, any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit; except that no indemnification shall be made in respect
of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall deter mine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery of the State of Delaware or such other court shall deem proper.
7.3 AUTHORIZATION OF INDEMNIFICATION. Any indemnification under this
Article VII (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director or officer is proper in the circumstances because such person has met
the applicable standard of conduct set forth in Section 145 of the DGCL. Such
determination shall be made (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(ii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iii) by the stockholders. To
the extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith, without
the necessity of authorization in the specific case.
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7.4 INDEMNIFICATION BY A COURT. Notwithstanding any contrary
determination in the specific case under Section 7.3 of this Article VII, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to the Court of Chancery of the State of Delaware or any other
court of competent jurisdiction in the State of Delaware for indemnification to
the extent otherwise permissible under Sections 7.1 and 7.2 of this Article VII.
The basis of such indemnification by a court shall be a determination by such
court that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standards of conduct
set forth in Section 145 of the DGCL. Neither a contrary determination in the
specific case under Section 7.3 of this Article VII nor the absence of any
determination thereunder shall be a defense to such application or create a
presumption that the director or officer seeking indemnification has not met any
applicable standard of conduct. Notice of any application for indemnification
pursuant to this Section 7.4 shall be given to the Corporation promptly upon the
filing of such application. If successful, in whole or in part, the director or
officer seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
7.5 EXPENSES PAYABLE IN ADVANCE. The Corporation shall advance all
expenses incurred by a director or officer in defending or investigating a
threatened or pending action, suit or proceeding within 10 days after the
receipt by the Corpora tion of a written statement from such director or officer
requesting such advance or advances from time to time, whether prior to or after
final disposition of such action, suit or proceeding. Such statement or
statements shall reasonably evidence the expenses incurred by such director or
officer and shall be preceded or accompanied by an undertaking by or on behalf
of such director or officer to repay any expenses so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified by the Corporation as authorized in this Article VII against such
expenses.
7.6 NON-EXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article VII shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
the Certificate of Incorporation or any By-Law, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the direction (howsoever
embodied) of any court of competent jurisdiction or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such office, it being the policy of the Corporation that indemnification
of the persons specified in Section 7.1 and 7.2 of this Article VII shall be
made to the fullest extent permitted by law. The provisions of this Article VII
shall not be deemed to preclude the
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indemnification of any person who is not specified in Section 7.1 or 7.2 of this
Article VII but whom the Corporation has the power or obligation to indemnify
under the provisions of the DGCL, or otherwise.
7.7 INSURANCE. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director or officer of the Corporation, or
is or was a director or officer of the Corporation serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against such person and incurred
by such person in any such capaci ty, or arising out of such person's status as
such, whether or not the Corporation would have the power or the obligation to
indemnify such person against such liabili ty under the provisions of this
Article VII.
7.8 CERTAIN DEFINITIONS. For purposes of this Article VII, references
to "the Corporation" shall include, in addition to the resulting corporation,
any constitu ent corporation (including any constituent of a constituent)
absorbed in a consolida tion or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors or
officers, so that any person who is or was a director or officer of such
constituent corporation, or is or was a director or officer of such constituent
corporation serving at the request of such constituent corporation as a
director, officer, partner, trustee, employee or agent of another corporation,
part nership, joint venture, trust, employee benefit plan or other enterprise,
shall stand in the same position under the provisions of this Article VII with
respect to the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had continued.
For purposes of this Article VII, references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corpora tion" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries.
7.9 SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VII shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
7.10 LIMITATIONS OF INDEMNIFICATION. Notwithstanding anything contained
in this Article VII to the contrary, except for proceedings to enforce rights to
indemnification
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(which shall be governed by Section 7.5 hereof), the Corporation shall not be
obligated to indemnify any director or officer (or his or her heirs, executors
or personal or legal representatives) or advance expenses in connection with a
proceeding (or part thereof) initiated by such person unless such proceeding
(or part thereof) was authorized or consented to by the Board of Directors of
the Corporation.
7.11 INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may, to
the extent authorized from time to time by the Board of Directors, provide
rights to indemnification and to the advancement of expenses to employees and
agents of the Corporation similar to those conferred in this Article VII on
directors and officers of the Corporation.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 SEAL. The seal of the Corporation shall consist of a flat-faced
circular die, of which there may be any number of counterparts, on which there
shall be engraved the word "Seal" and the name of the Corporation.
8.2 FISCAL YEAR. The fiscal year of the Corporation shall end on such
date and shall consist of such accounting periods as may be fixed by the Board
of Directors.
8.3 CHECKS, NOTES AND DRAFTS. Checks, notes, drafts and other orders
for the payment of money shall be signed by such persons as the Board of
Directors from time to time may authorize. When the Board of Directors so
authorizes, however, the signature of any such person may be a facsimile.
8.4 AMENDMENT OF BYLAWS.
(a) AMENDMENT BY DIRECTORS. Except as provided otherwise by law or
the Certificate, these Bylaws may be amended or repealed by the Board of
Directors by the affirmative vote of a majority of the directors then in office.
(b) AMENDMENT BY STOCKHOLDERS. These Bylaws may be amended or
repealed at any annual meeting of stockholders, or special meeting of
stockholders called for such purpose, by the affirmative vote of a majority of
the shares present in person or represented by proxy at such meeting and
entitled to vote on such amend ment or repeal, voting together as a single
class.
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8.5 VOTING OF STOCK HELD. Unless otherwise provided by resolution of
the Board of Directors or of the Executive Committee, if any, the Chief
Executive Officer may from time to time appoint an attorney or attorneys or
agent or agents of the corporation, in the name and on behalf of the
Corporation, to cast the vote that the Corporation may be entitled to cast as a
stockholder or otherwise in any other corporation, any of whose securities may
be held by the Corporation, at meetings of the holders of the shares or other
securities of such other corporation, or to consent in writing to any action by
any such other corporation; and the Chief Executive Officer shall instruct the
person or persons so appointed as to the manner of casting such votes or giving
such consent and may execute or cause to be executed on behalf of the
Corporation, and under its corporate seal or otherwise, such written proxies,
consents, waivers or other instruments as may be necessary or proper in the
premises. In lieu of such appointment, the Chief Executive Officer may himself
or herself attend any meetings of the holders of shares or other securities of
any such other corporation and there vote or exercise any or all power of the
Corporation as the holder of such shares or other securities of such other
corporation.
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EXHIBIT 5.1
July 2, 1999
Wyndham International, Inc.
1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
Ladies and Gentlemen:
Re: REGISTRATION STATEMENT ON FORM S-8
We are familiar with the proceedings taken by Wyndham International,
Inc., a Delaware corporation (the "Company"), with respect to 20,000,000
shares of Class A Common Stock, par value $0.01 per share, of the Company
(the "Shares") to be offered and sold from time to time pursuant to the
Amended and Restated Wyndham International, Inc. 1997 Incentive Plan and the
Wyndham International Employee Savings & Retirement Plan (together, the
"Plans"). As counsel for the Company, we have assisted in the preparation of
a Registration Statement on Form S-8 (the "Registration Statement") to be
filed by the Company with the Securities and Exchange Commission (the
"Commission") to effect the registration of the Shares under the Securities
Act of 1933, as amended (the "Securities Act").
In connection with rendering this opinion, we have examined the
Amended and Restated Certificate of Incorporation of the Company, the Amended
and Restated Bylaws of the Company, such records of the corporate proceedings
of the Company as we deemed material, the Registration Statement, the Plans,
and such other certificates, receipts, records and documents as we considered
necessary for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that when the Shares
have been issued and paid for in accordance with the terms of the Plans and
the Registration Statement, the Shares will be legally issued, fully paid and
nonassessable.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdiction
other than the laws of the United States of America, The Commonwealth of
Massachusetts and the Delaware General Corporation Law.
This opinion is intended solely for your use in the above-described
transaction and may not be reproduced or relied upon by any other person for
any purpose without the express written consent of the undersigned.
The foregoing assumes that all requisite steps will be taken to
comply with the requirements of the Securities Act and applicable
requirements of state laws regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/S/ GOODWIN, PROCTER & HOAR LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Wyndham International, Inc. to be filed with the Securities and
Exchange Commission on or about June 30, 1999 for the registration of
20,000,000 shares of common stock of Wyndham International, Inc. of our
report dated March 1, 1999 with respect to the Consolidated Financial
Statements and financial statement schedules of Patriot American Hospitality,
Inc., the Consolidated Financial Statements of Wyndham International, Inc.
and the Combined Financial Statements of Patriot American Hospitality, Inc.
and Wyndham International, Inc. included in the 1998 Joint Annual Report on
Form 10-K/A, as amended, of Patriot American Hospitality, Inc. and Wyndham
International, Inc., filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Dallas, Texas
June 28, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Wyndham International, Inc. to be filed with the Securities and
Exchange Commission on or about June 30, 1999 for the registration of
20,000,000 shares of common stock of Wyndham International, Inc. of our
reports (a) dated August 7, 1997 (except for Note 18, as to which the date is
September 17, 1997) with respect to the Consolidated Financial Statements of
WHG Resorts & Casinos Inc. and related financial statement schedule; (b)
dated August 7, 1997 with respect to the Financial Statements of Posadas de
San Juan Associates and related financial statement schedule; (c) dated
August 11, 1997 with respect to the Financial Statements of WKA El Con
Associates; and (d) dated May 2, 1997 with respect to the Financial
Statements of El Conquistador Partnership L.P.; all of which are included in
the Joint Current Report on Form 8-K of Patriot American Hospitality, Inc.
and Wyndham International, Inc. dated April 20, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Juan, Puerto Rico
June 28, 1999
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Wyndham International, Inc. to be filed with the Securities and
Exchange Commission on or about June 30, 1999 for the registration of
20,000,000 shares of common stock of Wyndham International, Inc. of our
reports (a) dated March 4, 1998 with respect to the Consolidated Financial
Statements of SF Hotel Company, L.P.; and (b) dated February 3, 1998 with
respect to the Combined Financial Statements of SC Suites Summerfield
Partnerships; both of which are included in the Joint Current Report on
Form 8-K/A No. 1 of Patriot American Hospitality, Inc. and Wyndham
International, Inc. dated June 2, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Wichita, Kansas
June 28, 1999
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 and the related prospectus of Wyndham International, Inc. to be
filed with the Securities and Exchange Commission on or about June 30, 1999
for the registration of 20,000,000 shares of common stock of Wyndham
International, Inc., of our reports (i) dated December 12, 1997, on our audit
of financial statements of Sheraton City Centre as of and for the year ended
December 31, 1996, included in the Joint Current Report on Form 8-K of
Patriot American Hospitality, Inc. and Wyndham International, Inc. dated
January 5, 1998; (ii) dated December 12, 1997 on our audit of the Statement
of Direct Revenue and Direct Operating Expenses of Wyndham Emerald Plaza for
the year ended December 31, 1996, included in the Current Report on Form 8-K
of Patriot American Hospitality, Inc. and Wyndham International, Inc. dated
January 5, 1998 and (iii) dated February 12, 1998, on our audit of the
consolidated financial statements of Wyndham Hotel Corporation as of
December 31, 1996 and 1997, and for each of the three years in the period ended
December 31, 1997 included in the Current Report of Form 8-K of Patriot
American Hospitality, Inc. and Wyndham International, Inc. dated April 20, 1998.
/s/ PriceWaterhouseCoopers
PRICEWATERHOUSECOOPERS
Dallas, Texas
June 30, 1999
<PAGE>
EXHIBIT 23.6
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 and the related prospectus of Wyndham International, Inc. to be
filed with the Securities and Exchange Commission on or about June 30, 1999
for the registration of 20,000,000 shares of common stock of Wyndham
International, Inc., of our report dated January 23, 1998, on our audit of
the financial statements of Royal Palace Hotel Associates, as of December 31,
1996, and 1997 and for each of the two years in the period ended December 31,
1997 included in the Current Report on Form 8-K of Patriot American
Hospitality, Inc. and Wyndham International, Inc. dated June 2, 1998.
/s/ PriceWaterhouseCoopers
PRICEWATERHOUSECOOPERS
Tampa, Florida
June 30, 1999
<PAGE>
EXHIBIT 23.7
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 and the related prospectus of Wyndham International, Inc. to be
filed with the Securities and Exchange Commission on or about June 30, 1999
for the registration of 20,000,000 shares of common stock of Wyndham
International, Inc., of our report dated February 27, 1998, relating to the
financial statements of CHC International Inc. Hospitality Division as of
November 30, 1996 and 1997 and for each of the years ended November 30, 1995,
1996 and 1997 included in the Joint Current Report on Form 8-K of Patriot
American Hospitality, Inc. and Wyndham International, Inc. dated April 20,
1998.
/s/ PriceWaterhouseCoopers
PRICEWATERHOUSECOOPERS
Miami, Florida
June 30, 1999
<PAGE>
EXHIBIT 23.8
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 and the related prospectus of Wyndham International, Inc. to be
filed with the Securities and Exchange Commission on or about June 30, 1999
for the registration of 20,000,000 shares of common stock of Wyndham
International, Inc., of our report dated February 11, 1998, except for Note 21,
as to which the date is March 1, 1998, and Note 3, as to which the date
is March 30, 1998, on our audit of the consolidated financial statements of
Interstate Hotels Company as of December 31, 1996 and 1997 and for each of
the three years in the period ended December 31, 1997 included in the Joint
Current Report on Form 8-K of Patriot American Hospitality, Inc. and Wyndham
International, Inc. dated April 20, 1998.
/s/ PriceWaterhouseCoopers
PRICEWATERHOUSECOOPERS
Pittsburgh, Pennsylvania
June 30, 1999
<PAGE>
EXHIBIT 23.9
CONSENT OF CHARTERED ACCOUNTANTS
As Chartered Accountants, we hereby consent to the incorporation by reference
in the Registration Statement on Form S-8 and related prospectus of Wyndham
International, Inc. for the registration of 20,000,000 shares of common stock
of Wyndham International, Inc. dated 30 June 1999 of our reports on the
financial statements of Arcadian International Limited (formerly Arcadian
International Plc) and subsidiary undertakings and Malmaison Limited and
subsidiary undertakings dated 22 July 1998 and 17 July 1998 respectively,
except with respect to Note 1 of those financial statements as to which our
report is 24 March 1999, which are included in the Joint Current Report on
Form 8-K/A No. 2 of Patriot American Hospitality, Inc. and Wyndham
International, Inc. dated 2 June 1998.
Arthur Andersen
1 Surrey Street
London
WCR2R 2PS
30 June 1999
