<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. __)*
WHG Resorts & Casinos Inc.
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(Name of issuer)
Common Stock, $.01 par value per share
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(Title of class of securities)
92924B 10 5
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(CUSIP number)
Rex E. Stewart
Chief Financial Officer
Patriot American Hospitality Operating Company
3030 LBJ Freeway, Suite 1500
Dallas, TX 75234
(972) 888-8000
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(Name, address and telephone number of person authorized to receive notices and
communications)
October 1, 1997
-------------------------------------------------------
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
(Continued on the following pages)
(Page 1 of 8 Pages)
________________________________
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
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SCHEDULE 13D
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CUSIP NO. XXXXXXXXX PAGE 2 OF 8 PAGES
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patriot American Hospitality Operating Company,
I.R.S Identification No. 94-0358820
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
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SEC USE ONLY
3
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SOURCE OF FUNDS*
4
00
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) or 2(e) [_]
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
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SOLE VOTING POWER
7
NUMBER OF 333,333 (See Response to Item 5)
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
1,730,583 (See Response to Item 5)
OWNED BY
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EACH SOLE DISPOSITIVE POWER
9
REPORTING 333,333 (See Response to Item 5)
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
0 (See Response to Item 5)
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
2,063,916 (See Response to Item 5)
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 [_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
32.3% (See Response to Item 5)
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TYPE OF REPORTING PERSON*
14
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
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CUSIP NO. XXXXXXXXX PAGE 3 OF 8 PAGES
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ITEM 1. SECURITY AND ISSUER.
-------------------
This statement relates to the common stock, $.01 per share par value
("Common Stock"), of WHG Resorts & Casinos Inc. ("Issuer"), a Delaware
corporation with its principal executive offices at 6063 East Isla Verde Avenue,
Carolina, Puerto Rico 00979.
ITEM 2. IDENTITY AND BACKGROUND.
-----------------------
The address of the principal office and the principal business of Patriot
American Hospitality Operating Company, a Delaware corporation ("PAHOC"), is
3030 LBJ Freeway, Suite 1500, Dallas, Texas 75234.
During the last five years, neither PAHOC nor, to the knowledge of PAHOC,
any executive officer or director of PAHOC (i) has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
The attached Schedule I is a list of the directors and executive officers
of PAHOC which contains the following information with respect to each person:
(a) name;
(b) business address; and
(c) present principal occupation or employment and the name, principal
business and address of any corporation or other organization in which
such employment is conducted.
To the knowledge of PAHOC, each person identified in Schedule I hereto is a
United States citizen.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
-------------------------------------------------
PAHOC has not yet purchased any shares of Common Stock of the Issuer and
therefore has not yet expended any funds in connection with any such purchase.
<PAGE>
SCHEDULE 13D
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CUSIP NO. XXXXXXXXX PAGE 4 OF 8 PAGES
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ITEM 4. PURPOSE OF TRANSACTION.
----------------------
As an inducement for PAHOC to enter into the Agreement and Plan of Merger
executed on October 1, 1997 among PAHOC, Patriot American Hospitality Operating
Company Acquisition Subsidiary ("Acquisition Sub"), Patriot American
Hospitality, Inc. ("Patriot"), and Issuer (the "Merger Agreement") a Voting
Agreement (the "Voting Agreement") among PAHOC, Acquisition Sub, Patriot and
certain stockholders of Issuer (the "Voting Agreement Stockholders") (a copy of
which is attached hereto as Exhibit 1) and an Agreement (the "Agreement") among
PAHOC, Acquisition Sub, Patriot and a certain stockholder of Issuer (the
"Agreement Stockholder") (a copy of which ia attached hereto as Exhibit 2) were
executed on October 1, 1997.
Pursuant to the Merger Agreement, Acquisition Sub will merge with and into
the Issuer (the "Merger"), with the Issuer surviving the Merger, and shares of
outstanding Common Stock and Series B Preferred Stock of the Issuer ("Preferred
Stock") will be converted into the right to receive shares of common stock, par
value $.01 per share, of PAHOC (the "PAHOC Stock") and shares of common stock,
par value $.01, of Patriot (the "Patriot Stock"). The PAHOC Stock and the
Patriot Stock are paired and transferable and traded only in combination as a
single unit (the "Paired Shares") on the New York Stock Exchange ("NYSE"). In
addition to providing for the Merger, the Merger Agreement restricts the Issuer
from, among other things, engaging in certain transactions, including
extraordinary corporate transactions (other than the Merger), making certain
acquisitions, selling certain assets, changing its capitalization in certain
respects, paying dividends or increasing amounts payable to its employees,
officers, directors and agents, and otherwise requires the Issuer to operate in
the ordinary course of business.
If the Merger is consummated, the registration of the Common Stock under
the Securities Exchange Act of 1934 will terminate.
Except as set forth above or in Item 5 below, PAHOC does not have any plans
or proposals concerning the Issuer with respect to the matters set forth in
subparagraphs (a) through (g) of Item 4.
ITEM 5. INTEREST IN SECURITIES OF ISSUER.
--------------------------------
As of September 30, 1997, 1,729,425 shares of Common Stock, representing
28.6% of the outstanding Common Stock of the Issuer, were subject to the Voting
Agreement. Pursuant to the Voting Agreement, each Voting Agreement Stockholder
has agreed to vote all shares of Common Stock over which he or it then has
voting power in favor of approving the Merger and adopting the Merger Agreement,
and against any alternative transaction involving the Issuer or its subsidiaries
which would impede, interfere with, delay, postpone or attempt to discourage the
Merger, including without limitation amendments to the Issuer's certificate of
incorporation or by-laws.
Pursuant to the Agreement, the Agreement Stockholder has granted PAHOC (i)
an irrevocable proxy to vote his 1,158 shares of Common Stock and his 300,000
shares of Preferred Stock, representing 100% of the outstanding Preferred Stock
of the Issuer, and (ii) an irrevocable option to purchase such shares of
Preferred Stock. Each share of Preferred Stock is convertible into approximately
1.11 shares of Common Stock. Each share of Preferred Stock is entitled to five
votes and, thus, represents voting power of the equivalent of 1,500,000 shares
of Common Stock. The option to purchase the shares of Preferred Stock may be
exercised at any time from September 30, 1997 through the expiration of the
option. The option expires on the later of (i) April 15, 1998 and (ii) 15 days
after the termination of the Merger Agreement. The exercise price of the option
for each share of Preferred
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SCHEDULE 13D
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CUSIP NO. XXXXXXXXX PAGE 5 OF 8 PAGES
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Stock is the greater of (i) $22.15 and (ii) the product of 1.11 times the Value
of the Paired Shares. The Agreement defines the "Value of the Paired Shares" as
the product of (a) the average of the closing prices of a Paired Share on the
NYSE on the ten trading days ending immediately prior to the date the reporting
person gives notice of exercise to the stockholder (the "Calculation Price") and
(b) the Exchange Ratio determined pursuant to the Merger Agreement as if the
Average Closing Price were equal to the Calculation Price. The Merger Agreement
defines the "Average Closing Price" as the average per share closing price of a
Paired Share on the NYSE over the ten trading days immediately preceding the
third business day prior to the date of the meeting of the Issuer's stockholders
to approve the Merger Agreement, subject to adjustment under certain
circumstances.
Assuming the conversion of the Preferred Stock to Common Stock, PAHOC as a
result of the Voting Agreement and the Agreement beneficially owns a total of
approximately 32.3% of the Common Stock. Without the conversion of the Preferred
Stock into Common Stock, PAHOC as a result of the Voting Agreement and the
Agreement has shared voting power in the aggregate of approximately 42.8% of
the Common Stock.
Except as described above, neither PAHOC nor, to the knowledge of PAHOC,
any person named in Schedule I beneficially owns any shares of Common Stock or
has effected any transactions in Common Stock during the past 60 days.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
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TO SECURITIES OF THE ISSUER.
---------------------------
The information set forth under Items 3, 4 and 5 above and the Exhibits
attached hereto are incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
--------------------------------
The following documents are filed as exhibits to this statement:
Exhibit 1 Voting Agreement, dated as of September 30, 1997, by and
---------
among PAHOC, Acquisition Sub, Patriot and certain stockholders
of the Issuer
Exhibit 2 Agreement, dated as of September 30, 1997, by and among
---------
PAHOC, Acquisition Sub, Patriot and a certain stockholder of the
Issuer
<PAGE>
SCHEDULE 13D
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CUSIP NO. XXXXXXXXX PAGE 6 OF 8 PAGES
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: October 14, 1997 By: /s/ Rex E. Stewart
---------------------------------------
Rex E. Stewart
Chief Financial Officer, Treasurer and
Secretary
<PAGE>
SCHEDULE 13D
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CUSIP NO. XXXXXXXXX PAGE 7 OF 8 PAGES
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SCHEDULE I
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The name and present principal occupation or employment of each executive
officer of PAHOC is set forth below. The business address of each person is set
forth below, and the address of the corporation or organization in which such
employment is conducted is the same as his business address. All of the persons
listed below are U.S. citizens. No person is a controlling shareholder of
PAHOC.
<TABLE>
<CAPTION>
Position Name Business Address
- ---------------------------- ------------------- --------------------------------
<S> <C> <C>
Chief Executive Officer Paul A. Nussbaum 3030 LBJ Freeway, Suite 1500
Dallas, Texas 75234
President and Chief Karim Alibhai 3030 LBJ Freeway, Suite 1500
Operating Officer Dallas, Texas 75234
Chief Financial Officer, Rex E. Stewart 3030 LBJ Freeway, Suite 1500
Treasurer and Secretary Dallas, Texas 75234
Executive Vice President- Paul Novak 3030 LBJ Freeway, Suite 1500
Acquisitions & Development Dallas, Texas 75234
Senior Vice President- Leslie Ng 3030 LBJ Freeway, Suite 1500
Acquisitions Dallas, Texas 75234
Senior Vice President- Michael Murphy 3030 LBJ Freeway, Suite 1500
Acquisitions Dallas, Texas 75234
Vice President- Financial Cindy L. Pervenanze 3030 LBJ Freeway, Suite 1500
Dallas, Texas 75234
Assistant Secretary Kathryn I. Murtagh c/o 3030 LBJ Freeway, Suite 1500
Dallas, Texas 75234
</TABLE>
The name and present principal occupation or employment of each director of
PAHOC is set forth below. The business address of each person is set forth
below, and the address of the corporation or organization in which such
employment is conducted is the same as his business address. All of the persons
listed below are U.S. citizens. No person is a controlling shareholder of
PAHOC.
<TABLE>
<CAPTION>
Name Business Address Occupation
- --------------------- ----------------------------------- ------------------------
<S> <C> <C>
Paul A. Nussbaum PAHOC Chief Executive Officer
3030 LBJ Freeway, Suite 1500
Dallas, TX 75234
Arch K. Jacobson Jacobson-Berger Capital Group, Inc. Consultant
4100 Alpha Road, Suite 220
Dallas, TX 75244
Russ Lyon, Jr. Westcore Realty LP Managing General Partner
11411 N. Tatum Blvd.
Phoenix, AZ 85028
Burton C. Einspruch Burton Einspruch, M.D. Medical Consultant
8330 Meadow Road, Suite 117
Dallas, TX 75231
</TABLE>
<PAGE>
SCHEDULE 13D
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CUSIP NO. XXXXXXXXX PAGE 8 OF 8 PAGES
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<TABLE>
<S> <C> <C>
Leonard Boxer Strook & Strook & Lavan, LLP Attorney
180 Maiden Lane
New York, NY 10038
Karim Alibhai Gencom American Hospitality President
1 Westchase Center
10777 Westheimer, Suite 1000
Houston, TX 77042
Sherwood Weiser Carnival Hotels and Casinos Chairman and CEO
3250 Mary Street
Miami, FL 33133
</TABLE>
<PAGE>
VOTING AGREEMENT
VOTING AGREEMENT, dated as of September 30, 1997 (this "Agreement"), among
Patriot American Hospitality Operating Company, a Delaware corporation
("PAHOC"), Patriot American Hospitality Operating Company Acquisition
Subsidiary, a Delaware corporation and a wholly owned subsidiary of PAHOC
("Acquisition Sub"), Patriot American Hospitality, Inc., a Delaware corporation
("Patriot") (collectively, PAHOC, Acquisition Sub and Patriot are referred to
herein as the "Parties"), and Sumner M. Redstone and National Amusements, Inc.,
a Maryland corporation (each, a "Stockholder" and collectively the
"Stockholders").
WHEREAS, as of the date hereof each Stockholder owns (i) of record and
beneficially, the number of shares of common stock, par value $.01 per share
(the "WHG Stock") of WHG Resorts & Casinos Inc., a Delaware corporation ("WHG"),
set forth in Column 1 of Exhibit A hereto and (ii) owns beneficially but not of
---------
record, the additional shares of WHG Stock set forth in Column 2 of Exhibit A
---------
hereto (all such shares and any shares hereafter acquired by the Stockholders
prior to the termination of this Agreement being referred to herein as the
"Shares");
WHEREAS, the Parties and WHG propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (as the same may be amended from time to
time, the "Merger Agreement"), which provides, upon the terms and subject to the
conditions thereof, for the merger of Acquisition Sub with and into WHG (the
"Merger"); and
WHEREAS, as a condition to the willingness of the Parties to enter into the
Merger Agreement, the Parties have requested that each Stockholder agree, and,
in order to induce the Parties to enter into the Merger Agreement, the
Stockholders have agreed to grant PAHOC irrevocable proxies to vote the
Stockholders' Shares subject to the terms set forth herein; and
WHEREAS, contemporaneously with the execution of this Agreement, each
Stockholder has delivered to the Parties an affiliate letter.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to the Parties as follows:
1
<PAGE>
SECTION 1.01. Due Authority. (a) Such Stockholder has full power and
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authority, corporate or otherwise, to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by or on behalf of such Stockholder and, assuming its due
authorization, execution and delivery by the Parties, constitutes a legal, valid
and binding obligation of such Stockholder, enforceable against such Stockholder
in accordance with its terms, subject to the effect of any applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws affecting
creditors' rights generally and subject, as to enforceability, to the effect of
general principals of equity (regardless of whether such enforceability is
considered in proceeding in equity or at law).
(b) There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which such Stockholder is trustee whose consent
is required for the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
SECTION 1.02. No Conflict; Consents. (a) The execution and delivery of
---------------------
this Agreement by such Stockholder does not, and the performance of the
transactions contemplated by this Agreement by such Stockholder and the
compliance by such Stockholder with any provisions hereof shall not, (i)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to such Stockholder or by which such Stockholder's Shares are bound,
(ii) conflict with or violate the Stockholder's certificate of incorporation or
by-laws or other organizational document, if applicable to such Stockholder,
(iii) result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of such Stockholder's Shares
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which such
Stockholder is a party or by which such Stockholder or such Stockholder's Shares
are bound, or (iv) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to such Stockholder or any of such
Stockholder's Shares.
(b) The execution and delivery of this Agreement by such Stockholder
do not, and the performance of this Agreement by such Stockholder shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority except for applicable
requirements, if any, of the Securities Exchange Act of 1934, as amended, and
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the performance by such Stockholder of his or her obligations under this
Agreement in any material respect.
SECTION 1.03. Title to Shares. (a) Such Stockholder is (i) the record and
---------------
beneficial owner of the number of shares of WHG Stock set forth in Column 1 of
Exhibit A hereto free and clear of any proxy or voting restriction other than
- ---------
pursuant to this Agreement and (ii) the beneficial owner of the additional
number of shares of WHG Stock set forth in Column 2 of
2
<PAGE>
Exhibit A hereto free and clear of any proxy or voting restriction other than
- ---------
pursuant to this Agreement. The Shares set forth opposite such Stockholder's
name on Exhibit A hereto constitute all of the shares of WHG Stock owned of
---------
record or beneficially by such Stockholder.
(b) Such Stockholder has sole power of disposition with respect to all
the Shares set forth opposite such Stockholder's name on Exhibit A hereto and
---------
the sole voting power with respect to the matters set forth in Article II
hereof, in each case with respect to all of the Shares set forth opposite such
Stockholder's name on Exhibit A hereto, with no restrictions on such rights,
---------
subject to any agreements pursuant to which margin loans have been obtained.
SECTION 1.04. No Encumbrances. Such Stockholder's Shares and the
---------------
certificates representing such Shares are now and at all times during the term
hereof will be held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever except for proxies arising under this
Agreement and any interest granted in connection with the margining of such
Stockholder's Shares.
SECTION 1.05. Acknowledgment of Reliance. Such Stockholder understands
--------------------------
and acknowledges that the Parties are entering into the Merger Agreement in
reliance upon such Stockholder's execution and delivery of this Agreement.
SECTION 1.06. Brokers. The Parties shall not be obligated or otherwise
-------
liable for any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of any Stockholder.
ARTICLE II
TRANSFER AND VOTING OF SHARES
SECTION 2.01. Transfer of Shares. During the Proxy Term each Stockholder
------------------
shall not (a) deposit such Stockholder's Shares into a voting trust or enter
into a voting agreement or arrangement with respect to such Shares or grant any
proxy or power of attorney with respect thereto, or (b) take any action that
would have the effect of preventing or disabling such Stockholder from
performing such Stockholder's obligations under this Agreement.
SECTION 2.02. Voting of Shares; Further Assurances. (a) Each Stockholder,
------------------------------------
by this Agreement, with respect to those Shares that such Stockholder currently
owns of record, does hereby constitute and appoint PAHOC, or any nominee of
PAHOC, with full power of substitution, during and for the Proxy Term, as such
Stockholder's true and lawful attorney and irrevocable proxy, for and in such
Stockholder's name, place and stead, to vote each of
3
<PAGE>
such Shares as such Stockholder's proxy, at every meeting of the stockholders of
WHG or any adjournment thereof or in connection with any written consent of
WHG's stockholders, (i) in favor of the adoption of the Merger Agreement and
approval of the Merger and the other transactions contemplated by the Merger
Agreement, (ii) against (x) any Acquisition Proposal, as that term is defined in
the Merger Agreement, and any proposal for any action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of WHG under the Merger Agreement or which is reasonably
likely to result in any of the conditions of WHG's obligations under the Merger
Agreement not being fulfilled and (y) any change in the directors of WHG, any
change in the present capitalization of WHG or any amendment to WHG's
certificate of incorporation or bylaws, any other material change in WHG's
corporate structure or business, or any other action which in the case of each
of the matters referred to in this clause (y) could reasonably be expected to
impede, interfere with, delay, postpone or materially adversely affect the
transactions contemplated by the Merger Agreement or the likelihood of such
transactions being consummated, and (iii) in favor of any other matter necessary
for consummation of the transactions contemplated by the Merger Agreement which
is considered at any such meeting of stockholders or in such consent, and in
connection therewith to execute any documents which are necessary or appropriate
in order to effectuate the foregoing, including the ability for PAHOC or its
nominees to vote such Shares directly. Each Stockholder intends this proxy to be
irrevocable and coupled with an interest during the Proxy Term and hereby
revokes any proxy previously granted by such Stockholder with respect to such
Stockholder's Shares.
(b) Each Stockholder hereby further agrees, with respect to any Shares
not voted pursuant to paragraph (a) above, including without limitation any
Shares owned beneficially but not of record by such Stockholder, that during the
Proxy Term, at any meeting of stockholders of WHG, however called, or in
connection with any written consent of WHG's stockholders, such Stockholder
shall vote (or cause to be voted) all Shares whether or not owned of record or
beneficially by such Stockholder except as specifically requested in writing by
PAHOC in advance, (i) in favor of the adoption of the Merger Agreement and
approval of the Merger and the other transactions contemplated by the Merger
Agreement, (ii) against (x) any Acquisition Proposal, as that term is defined in
the Merger Agreement, and any proposal for any action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of WHG under the Merger Agreement or which is reasonably
likely to result in any of the conditions of WHG's obligations under the Merger
Agreement not being fulfilled or (y) any change in the directors of WHG, any
change in the present capitalization of WHG or any amendment to WHG's
certificate of incorporation or bylaws, any other material change in WHG's
corporate structure or business, or any other action which in the case of each
of the matters referred to in this clause (y) could reasonably be expected to,
impede, interfere with, delay, postpone or materially adversely affect the
transactions contemplated by the Merger Agreement or the likelihood of such
transactions being consummated, and (iii) in favor of any other matter necessary
for consummation of the transactions contemplated by the Merger Agreement which
is considered at any such meeting of stockholders or in such consent, and in
connection therewith to execute any documents which are necessary or appropriate
in order to effectuate the foregoing.
4
<PAGE>
(c) For the purposes of this Agreement, "Proxy Term" shall mean the
period from the execution of this Agreement until the earlier of (i) the
termination of the Merger Agreement pursuant to Section 11.1; (ii) March 31,
1998, or (iii) the termination of this Agreement in accordance with Section
2.02(e).
(d) During the Proxy Term, each Stockholder shall perform such further
acts and execute such further documents and instruments as may reasonably be
required to carry out the provisions of this Agreement.
(e) Notwithstanding any other provision of this Agreement,
Stockholders may terminate this agreement by joint written notice to Patriot
following (i) the making of a Stockholder Superior Proposal to the Board of
Directors of WHG; or (ii) within ten business days after the date on which the
Average Closing Price of a Paired Share is less than $19.50 per Share. For the
purposes of this Agreement, a "Stockholder Superior Proposal" means any bona
fide Acquisition Proposal made after the date hereof in writing, the terms of
which provide for the stockholders of WHG to receive value superior to the value
to be received under the proposed Merger Agreement, and the "Average Closing
Price" shall mean the average per share closing price of a Paired Share as
reported on the NYSE over the ten (10) trading days immediately preceding the
day of any determination.
SECTION 2.03. Certain Events. Each Stockholder agrees that this Agreement
--------------
and the obligations hereunder shall attach to such Stockholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or otherwise,
including without limitation such Stockholder's heirs, guardians, administrators
and successors.
SECTION 2.04. Non-Transferability of Restrictions. Nothing in this
-----------------------------------
Agreement shall prohibit the Stockholders from disposing of any of their Shares
free and clear from the restrictions in this Agreement, or from pledging such
Shares in connection with the receipt of margin loans or otherwise.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. Severability. If any term or other provision of this
------------
Agreement is determined by any appropriate court to be invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as
5
<PAGE>
to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
SECTION 3.02. Entire Agreement. This Agreement constitutes the entire
----------------
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
SECTION 3.03. Amendments. This Agreement may not be modified, amended,
----------
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
SECTION 3.04. Assignment. This Agreement shall not be assigned by
----------
operation of law or otherwise.
SECTION 3.05. Parties in Interest. This Agreement shall be binding upon
-------------------
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 3.06. Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions and other equitable remedies to prevent breaches
of this Agreement and to enforce specifically the terms and provisions hereof in
any Delaware Court (as defined below), this being in addition to any other
remedy to which they are entitled at law or in equity. Any requirements for the
securing or posting of any bond with respect to such remedy are hereby waived by
each of the parties hereto.
SECTION 3.07. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the parties hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of Delaware and of the United States of America located in the
State of Delaware (the "Delaware Courts") for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and agrees
not to commence any litigation relating thereto except in such courts), waives
any objection to the laying of venue of any such litigation in the Delaware
Courts and agrees not to plead or claim in any Delaware Court that such
litigation brought therein has been brought in any inconvenient forum.
SECTION 3.08. Counterparts. This Agreement may be executed in one or more
------------
counterparts, and by the different parties hereto in separate counterparts, each
of which when
6
<PAGE>
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 3.09. Definitions. Terms used in this Agreement and not otherwise
-----------
defined herein shall have the meanings set forth in the Merger Agreement.
SECTION 3.10. Patriot and PAHOC agree to either, at their option, (i) take
such actions reasonably necessary to register the shares of Patriot and PAHOC
stock received by the Stockholders in the merger for resale pursuant to the Form
S-4 or (ii) promptly after the Effective Time, register such shares pursuant to
a registration statement on Form S-3. Patriot and PAHOC shall maintain the
effectiveness of any such registration statement (subject to the right of
Patriot and PAHOC to convert to a Form S-3 registration from the Form S-4 at any
time and subject to customary blackout provisions) until the earlier of (i) the
first anniversary of the Effective Time or (ii) the date that neither of the
Stockholders owns any such shares.
[Remainder of Page Intentionally Left Blank
7
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PATRIOT AMERICAN HOSPITALITY
OPERATING COMPANY
By: ___________________________________
Name:
Title:
PATRIOT AMERICAN HOSPITALITY
OPERATING COMPANY ACQUISITION SUBSIDIARY
By: ___________________________________
Name:
Title:
PATRIOT AMERICAN HOSPITALITY, INC.
By: ___________________________________
Name:
Title:
NATIONAL AMUSEMENTS, INC.
By: ___________________________________
Name:
Title:
_____________________________
Sumner M. Redstone
8
<PAGE>
EXHIBIT A
---------
<TABLE>
<CAPTION>
Number of Shares of Number of Shares of
WHG Stock WHG Stock
Name and Address Owned of Record and Owned Beneficially But
of Stockholder Beneficially by Stockholder Not of Record by Stockholder
- --------------------------- ------------------------------ ----------------------------
<S> <C> <C>
National Amusements, Inc. 0 Common 870,975 Common
Sumner M. Redstone 0 Common 858,450 Common
</TABLE>
9
<PAGE>
AGREEMENT
This AGREEMENT, dated as of September 30, 1997 (this "Agreement"), among
Patriot American Hospitality Operating Company, a Delaware corporation
("PAHOC"), Patriot American Hospitality Operating Company Acquisition
Subsidiary, a Delaware corporation and a wholly owned subsidiary of PAHOC
("Acquisition Sub"), Patriot American Hospitality, Inc., a Delaware corporation
("Patriot") (collectively, PAHOC, Acquisition Sub and Patriot are referred to
herein as the "Parties"), and Louis J. Nicastro ("Nicastro"). All capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Merger Agreement (as defined below).
WHEREAS, as of the date hereof Nicastro owns (i) of record and
beneficially, the number of shares of common stock, par value $.01 per share
(the "WHG Common Stock"), and of Series B preferred stock, par value $.01 per
share (the "WHG Preferred Stock"), of WHG Resorts & Casinos Inc., a Delaware
corporation ("WHG") (collectively, "WHG Stock"), set forth in Column 1 of
Exhibit A hereto and (ii) owns beneficially but not of record the additional
- ---------
shares of WHG Stock set forth in Column 2 of Exhibit A hereto (all such shares
---------
and any shares hereafter acquired by Nicastro prior to the termination of this
Agreement being referred to herein as the "Shares");
WHEREAS, the Parties and WHG propose to enter into an Agreement and Plan of
Merger, dated as of the date hereof (as the same may be amended from time to
time, the "Merger Agreement"), which provides, upon the terms and subject to the
conditions thereof, for the merger of Acquisition Sub with and into WHG (the
"Merger");
WHEREAS, as a condition to the willingness of the Parties to enter into the
Merger Agreement, the Parties have requested that Nicastro agree, and, in order
to induce the Parties to enter into the Merger Agreement, Nicastro has agreed to
(i) grant PAHOC an irrevocable proxy to vote Nicastro's Shares subject to the
terms contained herein, (ii) not offer, sell, contract to sell, make any short
sale, pledge, grant any option to purchase or otherwise dispose of the Paired
Shares received as Merger Consideration for a period of 90 days after the
Effective Time subject to the terms contained herein; (iii) grant PAHOC or its
designee an irrevocable option to purchase Nicastro's WHG Preferred Stock
subject to the terms contained herein, and (iv) an employment agreement with
Surviving Corporation, substantially in the form of Exhibit B attached hereto;
---------
and
WHEREAS, contemporaneously with the execution of this Agreement, Nicastro
has delivered to the Parties an affiliate letter.
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1
<PAGE>
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF NICASTRO
Nicastro hereby represents and warrants to the Parties as follows:
SECTION 1.01. Due Authority. (a) Nicastro has full power and authority to
-------------
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Nicastro and, assuming its due authorization, execution and delivery by the
Parties, constitutes a legal, valid and binding obligation of Nicastro,
enforceable against Nicastro in accordance with its terms.
(b) There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which Nicastro is trustee whose consent is
required for the execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby.
SECTION 1.02. No Conflict; Consents. (a) The execution and delivery of
---------------------
this Agreement by Nicastro does not, and the performance of the transactions
contemplated by this Agreement by Nicastro and the compliance by Nicastro with
any provisions hereof shall not, (i) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to Nicastro or by which
Nicastro's Shares are bound, (ii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of Nicastro's Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Nicastro is a party or by which Nicastro or
Nicastro's Shares are bound, or (iii) violate any order, writ, injunction,
decree, judgment, order, statute, rule or regulation applicable to Nicastro or
any of Nicastro's Shares.
(b) The execution and delivery of this Agreement by Nicastro do not,
and the performance of this Agreement by Nicastro will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority except for applicable requirements, if any,
of the Securities Exchange Act of 1934, as amended.
SECTION 1.03. Title to Shares. (a) Nicastro is (i) the record and
---------------
beneficial owner of the number of shares of WHG Stock set forth in Column 1 of
Exhibit A hereto free and clear of any proxy or voting restriction other than
- ---------
pursuant to this Agreement and (ii) the beneficial owner of the additional
number of shares of WHG Stock set forth in Column 2 of Exhibit A hereto free and
---------
clear of any proxy or voting restriction other than pursuant to this Agreement.
The Shares set forth opposite Nicastro's name on Exhibit A hereto constitute all
---------
of the shares of WHG Stock owned of record or beneficially by Nicastro.
2
<PAGE>
(b) Nicastro has sole power of disposition with respect to all the
Shares set forth opposite Nicastro's name on Exhibit A hereto and the sole
---------
voting power with respect to the matters set forth in Article II hereof, in each
case with respect to all of the Shares set forth opposite Nicastro's name on
Exhibit A hereto, with no restrictions on such rights.
- ---------
SECTION 1.04. No Encumbrances. Nicastro's Shares and the certificates
---------------
representing such Shares are now and at all times during the Proxy Term (as
hereinafter defined) will be held by Nicastro, or by a nominee or custodian for
the benefit of Nicastro, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever except for proxies arising under this
Agreement.
SECTION 1.05. Acknowledgment of Reliance. Nicastro understands and
--------------------------
acknowledges that the Parties are entering into the Merger Agreement in reliance
upon Nicastro's execution and delivery of this Agreement.
SECTION 1.06. Brokers. The Parties shall not be obligated or otherwise
-------
liable for any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of Nicastro.
ARTICLE II
TRANSFER AND VOTING OF SHARES
SECTION 2.01. Transfer of Shares. During the Proxy Term Nicastro shall not
------------------
(a) sell, tender, transfer, pledge, encumber, assign or otherwise dispose of any
of his Shares, (b) deposit his Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares or grant any proxy or power
of attorney with respect thereto, (c) enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect sale,
transfer, pledge, encumbrance, assignment or other disposition of any WHG Stock,
or (d) take any action that would make any representation or warranty of
Nicastro contained herein untrue or incorrect or have the effect of preventing
or disabling Nicastro from performing his obligations under this Agreement.
SECTION 2.02. Voting of Shares; Further Assurances. (a) Nicastro, by this
------------------------------------
Agreement, with respect to those Shares that he currently owns of record and any
Shares he hereafter owns of record, does hereby constitute and appoint PAHOC, or
any nominee of PAHOC, with full power of substitution, during and for the Proxy
Term, as his true and lawful attorney and irrevocable proxy, for and in his
name, place and stead, to vote each of such Shares as his proxy, at every
meeting of the stockholders of WHG or any adjournment thereof or in connection
with any written consent of WHG's stockholders, (i) in favor of the adoption of
the Merger Agreement and approval of the Merger and the other transactions
3
<PAGE>
contemplated by the Merger Agreement, (ii) against (x) any Acquisition Proposal,
as that term is defined in the Merger Agreement, and any proposal for any action
or agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of WHG under the Merger Agreement
or which could result in any of the conditions of WHG's obligations under the
Merger Agreement not being fulfilled and (y) any change in the directors of WHG,
any change in the present capitalization of WHG or any amendment to WHG's
certificate of incorporation or bylaws, any other material change in WHG's
corporate structure or business, or any other action which in the case of each
of the matters referred to in this clause (y) could reasonably be expected to
impede, interfere with, delay, postpone or materially adversely affect the
transactions contemplated by the Merger Agreement or the likelihood of such
transactions being consummated, and (iii) in favor of any other matter necessary
for consummation of the transactions contemplated by the Merger Agreement which
is considered at any such meeting of stockholders or in such consent, and in
connection therewith to execute any documents which are necessary or appropriate
in order to effectuate the foregoing including the ability for PAHOC or its
nominees to vote such Shares directly. Nicastro intends this proxy to be
irrevocable and coupled with an interest during the Proxy Term and hereby
revokes any proxy previously granted by him with respect to his Shares.
(b) Nicastro hereby further agrees, with respect to any Shares not
voted pursuant to paragraph (a) above, including without limitation any shares
owned beneficially but not of record by him, that during the Proxy Term, at any
meeting of stockholders of WHG, however called, or in connection with any
written consent of WHG's stockholders, Nicastro shall vote (or cause to be
voted) all such Shares, except as specifically requested in writing by PAHOC in
advance, (i) in favor of the adoption of the Merger Agreement and approval of
the Merger and the other transactions contemplated by the Merger Agreement, (ii)
against (x) any Acquisition Proposal, as that term is defined in the Merger
Agreement, and any proposal for any action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of WHG under the Merger Agreement or which could result in any of the
conditions of WHG's obligations under the Merger Agreement not being fulfilled
or (y) any change in the directors of WHG, any change in the present
capitalization of WHG or any amendment to WHG's certificate of incorporation or
bylaws, any other material change in WHG's corporate structure or business, or
any other action which in the case of each of the matters referred to in this
clause (y) could reasonably be expected to, impede, interfere with, delay,
postpone or materially adversely affect the transactions contemplated by the
Merger Agreement or the likelihood of such transactions being consummated, and
(iii) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement which is considered at any
such meeting of stockholders or in such consent, and in connection therewith to
execute any documents which are necessary or appropriate in order to effectuate
the foregoing.
(c) For the purposes of this Agreement, "Proxy Term" shall mean the
period from the execution of this Agreement until the earliest of (i) the
termination of the Merger Agreement pursuant to Section 11.1 (other than Section
11.1(g)), (ii) April 15, 1998, or (iii) the Effective Time of the Merger.
4
<PAGE>
(d) During the Proxy Term, Nicastro in his capacity as an individual
and as a holder of WHG Stock but not in his capacity as an officer or director
of WHG or any WHG Subsidiary, shall perform such further acts and execute such
further documents and instruments as may reasonably be required to carry out the
provisions of this Agreement.
SECTION 2.03. Certain Events. Nicastro agrees that this Agreement and the
--------------
obligations hereunder shall attach to Nicastro's Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of such Shares
shall pass, whether by operation of law or otherwise, including without
limitation Nicastro's heirs, guardians, administrators and successors.
ARTICLE III
CERTAIN COVENANTS
SECTION 3.01. No Solicitation. During the Proxy Term Nicastro shall not
---------------
in his capacity as an individual and as a holder of WHG Stock but not in his
capacity as an officer or director of WHG or any WHG Subsidiary, (i) solicit,
initiate or knowingly encourage the submission of, any inquiries, proposals or
offers from any person relating to a Acquisition Proposal, (ii) enter into any
agreement with respect to any Acquisition Proposal, or (iii) enter into or
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to knowingly
facilitate any inquiries or the making of any proposal that constitutes, or
would reasonably be expected to lead to, any Acquisition Proposal.
SECTION 3.02. Public Announcements. Each of the parties hereto shall
--------------------
consult with the other before issuing any press release or otherwise making any
public statements with respect to this Agreement, provided, however, that a
-------- -------
party may, if applicable, without consulting the others, issue any press release
or make any such public statement as may be required by law or the applicable
rules of the New York Stock Exchange or any other stock exchange on which any
securities of such party are listed if it has used its best efforts to consult
with the others but has been unable to do so in a timely manner.
ARTICLE IV
STANDSTILL
Nicastro confirms, covenants and agrees, for the benefit of the Parties,
that during the period beginning from and including the Closing Date and
continuing to and including the date 90 days after the Effective Time, Nicastro
will not offer, sell, contract to sell, make any short sale, pledge, grant any
option to purchase or otherwise dispose of any Paired Shares received by
Nicastro in the Merger or any securities of the Parties received by Nicastro in
the Merger
5
<PAGE>
which are substantially similar to, or derivative of, Paired Shares, or which
are convertible into or exchangeable or exercisable for, or that otherwise
represent the right to receive, Paired Shares without the prior written consent
of the Parties; provided, however, that Nicastro may from time to time during
-------- -------
such period sell Paired Shares in compliance with law provided that the
aggregate proceeds from such sales do not exceed $3,000,000.
ARTICLE V
OPTION TO PURCHASE SHARES
5.1 Grant of the Option. Subject to the terms, provisions and conditions
-------------------
contained in this Agreement, Nicastro hereby grants to PAHOC and its designees
an option to purchase all but not less than all of the 300,000 shares of WHG
Preferred Stock (the "Preferred Shares") held by Nicastro at the Exercise Price
(as hereinafter defined) per share (the "Option").
5.2 Notice of, and Procedures for, Exercise of Option.
-------------------------------------------------
(a) The Option may, subject to Section 6.1 hereof, be exercised at any
time from and after the date hereof by written notice to Nicastro from PAHOC
stating its intention to exercise the Option, which notice shall include a date
and time at which the closing for such exercise (the "Option Closing") shall
occur, such date to be not less than 24 hours and not more than five days after
the giving of such notice. The sale and delivery and the purchase and
acceptance of the Preferred Shares shall take place at the offices of Goodwin,
Procter & Hoar LLP at Exchange Place, Boston, Massachusetts, or such other
place as shall be mutually agreed upon by the parties hereto.
(b) At the Option Closing, PAHOC or its designee shall pay the
Exercise Price (as determined pursuant to Section 5.3 below) for each Preferred
Share being purchased in cash by a cashiers check or federal funds wire transfer
to an account designated by Nicastro against delivery of any necessary or
appropriate stock certificates and duly executed instruments of transfer to
PAHOC or its designee. In addition, if the Exercise Price for the Option
Closing is determined pursuant to clause (ii) of the first sentence of Section
5.3, PAHOC or its designee shall pay to Nicastro in cash an amount equal to any
dividends accrued which are unpaid as of the date of the Option Closing on the
Shares purchased at the Option Closing.
Nicastro represents and warrants to PAHOC and its designee that upon payment of
the applicable purchase price at the Option Closing, Nicastro shall have
transferred to PAHOC or its designee the legal and beneficial ownership of the
Preferred Shares, free and clear of any liens, encumbrances, charges,
restrictions or other adverse claims.
6
<PAGE>
5.3 Exercise Price. The exercise price (the "Exercise Price") for each
--------------
Preferred Share shall be the greater of (i) $22.22 or (ii) the product of 1.11
times the Value of the Paired Shares (as hereinafter defined). The "Value of
the Paired Shares" shall equal the product of (i) the average of the closing
prices of the Paired Shares on the New York Stock Exchange on the ten trading
days ending immediately prior to the date PAHOC sends the applicable notice of
exercise to Nicastro (the "Calculation Price") and (ii) the Exchange Ratio
determined pursuant to the Merger Agreement as if the Average Closing Price were
equal to the Calculation Price.
5.4 As additional consideration for the purchase of the Preferred Shares,
PAHOC shall pay to Nicastro, as and when received by PAHOC or its designee, in
cash or in kind, 50% of the amount by which (a) any proceeds received prior to
the date which is 180 days after the date of the Option Closing by PAHOC or its
designee from the sale, exchange, transfer or other disposition of the Preferred
Shares sold at the Option Closing or the WHG Common Stock issued upon conversion
of such Preferred Shares exceeds (b) the sum of (i) the aggregate amount paid
pursuant to Section 5.3 and (ii) any amount paid with respect to such Preferred
Shares pursuant to the last sentence of Section 5.2(b).
5.5 Escrow. Upon request by PAHOC, Nicastro agrees to place the Preferred
------
Shares subject to the Option in escrow with a mutually agreeable escrow agent
until the termination of the Option.
5.6 Term of Option. The Option shall terminate on April 15, 1998 or, if
--------------
the March 31, 1998 date set forth in Section 11.1(c) is extended, fifteen (15)
days after the termination of the Merger Agreement.
ARTICLE VI
GENERAL PROVISIONS
SECTION 6.01. Severability. If any term or other provision of this
------------
Agreement is determined by any appropriate court to be invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in an acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
SECTION 6.02. Entire Agreement. This Agreement constitutes the entire
----------------
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof.
7
<PAGE>
SECTION 6.03. Amendments. This Agreement may not be modified, amended,
----------
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto.
SECTION 6.04. Assignment. This Agreement shall not be assigned by
----------
operation of law or otherwise.
SECTION 6.05. Parties in Interest. This Agreement shall be binding upon
-------------------
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any person
any right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
SECTION 6.06. Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions and other equitable remedies to prevent breaches
of this Agreement and to enforce specifically the terms and provisions hereof in
any Delaware Court (as defined below), this being in addition to any other
remedy to which they are entitled at law or in equity. Any requirements for the
securing or posting of any bond with respect to such remedy are hereby waived by
each of the parties hereto.
SECTION 6.07. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the parties hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of Delaware and of the United States of America located in the
State of Delaware (the "Delaware Courts") for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and agrees
not to commence any litigation relating thereto except in such courts), waives
any objection to the laying of venue of any such litigation in the Delaware
Courts and agrees not to plead or claim in any Delaware Court that such
litigation brought therein has been brought in any inconvenient forum.
SECTION 6.08. Counterparts. This Agreement may be executed in one or more
------------
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank
8
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
PATRIOT AMERICAN HOSPITALITY
OPERATING COMPANY
By: __________________________
Name:
Title:
PATRIOT AMERICAN HOSPITALITY
OPERATING COMPANY ACQUISITION SUBSIDIARY
By: __________________________
Name:
Title:
PATRIOT AMERICAN HOSPITALITY, INC.
By: __________________________
Name:
Title:
__________________________________
Louis J. Nicastro
9
<PAGE>
EXHIBIT A
---------
Column 1 Column 2
-------- --------
Number of Shares of Number of Shares of
WHG Stock WHG Stock
Name and Address Owned of Record and Owned Beneficially But
of Stockholder Beneficially by Stockholder Not of Record by Stockholder
- ---------------- --------------------------- ----------------------------
Louis J. Nicastro 1,158 Common 0 Common
300,000 Series B Preferred 0 Series B Preferred
10
