EXHIBIT 99.1
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EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 14, 2005 (this "Agreement"), by
and
among the stockholders listed on Schedule A
attached hereto (each, a "Principal
Stockholder" and collectively, the
"Principal Stockholders"), WYNDHAM
INTERNATIONAL, INC., a Delaware corporation
(the "Company"), WIND HOTELS
HOLDINGS INC., a Delaware corporation
("Parent"), and WIND HOTELS ACQUISITION
INC., a Delaware corporation and
wholly-owned subsidiary of Parent ("Merger
Subsidiary").
WHEREAS, the Company and certain of its stockholders are parties to
the
Recapitalization and Merger Agreement,
dated as of April 14, 2005 (the
"Recapitalization and Merger Agreement"),
providing for, among other things, the
merger of a wholly owned subsidiary of the
Company with and into the Company
(the "Recapitalization Merger"), and by
virtue of the Recapitalization Merger,
the conversion of (i) each share of Class A
Common Stock, par value $0.01 per
share, of the Company ("Class A Common
Stock"), and Class B Common Stock, par
value $0.01 per share, of the Company
("Class B Common Stock") that is issued
and outstanding immediately prior to the
effective time of the Recapitalization
Merger (the "Recapitalization Merger
Effective Time") into one share of common
stock, par value $0.01 per share, of the
Company ("Common Stock") and (ii) each
share of Series A Preferred Stock, par
value $0.01 per share, of the Company
("Series A Preferred Stock"), and Series B
Preferred Stock, par value $0.01 per
share, of the Company ("Series B Preferred
Stock"), that is issued and
outstanding immediately prior to the
Recapitalization Merger Effective Time into
that number of shares of Common Stock
specified in the Recapitalization and
Merger Agreement;
WHEREAS, the Company, Parent and Merger Subsidiary are entering
into an
Agreement and Plan of Merger, dated as of
the date hereof (as amended or
supplemented from time to time in
accordance with the terms thereof, the "Merger
Agreement"), providing for the merger of
Merger Subsidiary with and into the
Company (the "Merger"), upon the terms and
subject to the conditions set forth
in the Merger Agreement;
WHEREAS, so long as the Merger Agreement has not been terminated
in
accordance with its terms, the
Recapitalization Merger shall not be consummated;
WHEREAS, as the date hereof, each Principal Stockholder
beneficially
owns the class and number of shares of
capital stock of the Company set forth
opposite such Principal Stockholder's name
on Schedule A attached hereto; and
WHEREAS, as a condition to the willingness of Parent and Merger
Subsidiary to enter into the Merger
Agreement, each of Parent and Merger
Subsidiary has required that the Principal
Stockholders agree, and in order to
induce Parent and Merger Subsidiary to
enter into the Merger Agreement, the
Principal Stockholders have agreed, to
enter into this Agreement with respect to
(a) all the shares of Class A Common Stock,
Class B Common Stock, Series A
Preferred Stock or Series B Preferred
Stock, as the case
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may be, now beneficially owned and all the
shares of Class A Common Stock, Class
B Common Stock, Series A Preferred Stock,
Series B Preferred Stock or Common
Stock, as the case may be, which may
hereafter be acquired by, or on behalf of,
the Principal Stockholders whether pursuant
to the Recapitalization Merger or
otherwise (the "Shares") and (b) certain
other matters as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual
covenants and agreements contained herein,
and intending to be legally bound
hereby, the parties hereto hereby agree as
follows:
ARTICLE I
Section 1.1
VOTING AGREEMENT. Subject, in the case of BCP Voting,
Inc., as trustee for the Beacon Capital
Partners Voting Trust ("Beacon"), to (i)
the requisite approval (the "Beacon
Approval") of holders of interests in Beacon
pursuant to the terms of the Beacon Voting
Trust Agreement, dated as of June 8,
1999 (the "Beacon Trust Agreement") and and
(ii) the expiration and non-renewal
of the Beacon Trust Agreement
(collectively, clauses (i) and (ii), the "Beacon
Exception"), each Principal Stockholder,
severally and not jointly, hereby
agrees that during the time this Agreement
is in effect, at any meeting of the
stockholders of the Company, however
called, or at any adjournment thereof or in
any other circumstances upon which a vote,
consent or other approval (including
by written consent) is sought, the
Principal Stockholders shall (1) when a
meeting is held, appear at such meeting or
otherwise cause the Shares to be
counted as present thereat for the purpose
of establishing a quorum and (2) vote
(or cause to be voted) the Shares: (x) in
favor of the Merger, the Merger
Agreement and the transactions contemplated
by the Merger Agreement if a vote,
consent or other approval (including by
written consent) with respect to any of
the foregoing is sought and (y) against any
(i) merger agreement or merger
(other than the Merger Agreement and the
Merger), consolidation, combination,
sale of substantial assets, reorganization,
recapitalization, dissolution,
liquidation or winding up of or by the
Company or any other Takeover Proposal or
(ii) amendment of the Company's certificate
of incorporation or by-laws or other
proposal or transaction involving the
Company or any of its subsidiaries, which
amendment or other proposal or transaction
would in any manner reasonably be
expected to impede, delay, frustrate,
prevent or nullify the Merger, the Merger
Agreement or any of the other transactions
contemplated by the Merger Agreement
or result in a breach in any material
respect of any representation, warranty,
covenant or agreement of the Company under
the Merger Agreement or change in any
manner the voting rights of any class of
the Common Stock, or Class A Common
Stock, Class B Common Stock, Series A
Preferred Stock and Series B Preferred
Stock, as the case may be; PROVIDED,
HOWEVER, that nothing contained in this
Section 1.1(a) shall be deemed to apply to
the Recapitalization and Merger
Agreement, the Recapitalization Merger or
the other transactions contemplated
thereby (including the amendments to the
Company's restated certificate of
incorporation and amended and restated
bylaws contemplated thereby). Beacon will
use its reasonable efforts to solicit the
Beacon Approval as promptly as
practicable after the date hereof.
Section 1.2
PROXY.
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(a) EACH OF
THE PRINCIPAL STOCKHOLDERS HEREBY GRANTS TO, AND
APPOINTS, PARENT, THE PRESIDENT OF PARENT
AND THE SECRETARY OF PARENT, IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF
PARENT, AND ANY OTHER DESIGNEE OF PARENT,
EACH OF THEM INDIVIDUALLY, SUCH PRINCIPAL
STOCKHOLDER'S IRREVOCABLE (UNTIL THE
TERMINATION DATE (AS DEFINED BELOW)) PROXY
AND ATTORNEY-IN-FACT (WITH FULL POWER
OF SUBSTITUTION) TO VOTE THE SHARES AS
INDICATED IN SECTION 1.1. EACH OF THE
PRINCIPAL STOCKHOLDERS INTENDS THIS PROXY
TO BE IRREVOCABLE (UNTIL THE
TERMINATION DATE) AND COUPLED WITH AN
INTEREST AND WILL TAKE SUCH FURTHER ACTION
OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE
NECESSARY TO EFFECTUATE THE INTENT
OF THIS PROXY AND HEREBY REVOKES ANY PROXY
PREVIOUSLY GRANTED BY SUCH PRINCIPAL
STOCKHOLDER WITH RESPECT TO THE COVERED
SHARES.
(b)
Notwithstanding clause (a), Beacon shall not grant any proxy
unless and until permitted under the terms
of the Beacon Trust Agreement.
Section 1.3
WAIVER OF CERTAIN AGREEMENTS. The Principal
Stockholders and the Company hereby agree
to waive (on behalf of themselves and
their respective controlled affiliates) all
applicable provisions of the
Securities Purchase Agreement, dated as of
February 18, 1999 (as amended or
supplemented from time to time, the
"Securities Purchase Agreement"), by and
among the Patriot American Hospitality,
Inc., the Company, Patriot American
Hospitality Partnership, L.P., Wyndham
International Operating Partnership,
L.P., the Principal Stockholders and
certain other stockholders of the Company
named therein, and the Recapitalization and
Merger Agreement, in each case, to
the extent necessary to enter into this
Agreement and to consummate the
transactions contemplated hereby; PROVIDED,
HOWEVER, that any such waivers shall
be effective only during the term of this
Agreement and shall terminate upon the
termination of this Agreement in accordance
with its terms.
Section 1.4
ACKNOWLEDGMENT. Each Principal Stockholder hereby
acknowledges receipt and review of a copy
of the Merger Agreement and that the
Company's obligations under the
Recapitalization and Merger Agreement are
subject to its obligations under the Merger
Agreement.
Section 1.5
BOARD DUTIES. Notwithstanding the foregoing, nothing
in this Agreement shall limit, restrict or
otherwise affect any actions taken in
compliance with the Merger Agreement by any
person affiliated with any Principal
Stockholder in his or her capacity as a
member of the Board of Directors of the
Company or any committee thereof.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE PRINCIPAL STOCKHOLDERS
Each Principal Stockholder, severally and not jointly, hereby
represents and warrants to Parent as
follows:
Section
2.1
AUTHORITY RELATIVE TO THIS AGREEMENT. Subject, in the
case of Beacon, to the Beacon Exception,
(i) each Principal Stockholder has all
necessary power and authority to execute
and deliver this Agreement, to perform
its obligations hereunder and to consummate
the transactions to be consummated
by it as contemplated hereby, (ii) the
execution and delivery of this Agreement
by each Principal Stockholder and the
consummation by each Principal Stockholder
of the transactions to be consummated by it
as contemplated hereby have been
duly and validly authorized by such
Principal Stockholder, and no other
proceedings on the part of such Principal
Stockholder are necessary to authorize
this Agreement, to perform such obligations
or to consummate such transactions,
and (iii) this Agreement has been duly and
validly executed and delivered by
each Principal Stockholder and, assuming
the due authorization, execution and
delivery by Parent and Merger Subsidiary,
constitutes a legal, valid and binding
obligation of each Principal Stockholder,
enforceable against such Principal
Stockholder in accordance with its terms,
except as enforcement may be limited
by bankruptcy, insolvency, moratorium or
other similar laws relating to
creditors rights generally and by general
equitable principles (regardless of
whether such enforceability is considered
in a proceeding in equity or at law).
Section 2.2 NO
CONFLICT.
(a) Subject,
in the case of Beacon, to the Beacon Exception, the
execution and delivery of this Agreement by
each Principal Stockholder do not,
and the performance of its obligations
under this Agreement by such Principal
Stockholder and the consummation of the
transactions to be consummated by it as
contemplated hereby shall not, (i) conflict
with or violate the certificate of
incorporation, by-laws or other
organizational documents of such Principal
Stockholder, (ii) conflict with or violate
any law, rule, regulation, order,
judgment or decree applicable to such
Principal Stockholder or by which the
Shares are bound or affected or (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 the Shares pursuant
to, any note, bond, mortgage,
indenture, contract, agreement, lease,
license, permit, franchise or other
instrument or obligation to which such
Principal Stockholder is a party or by
which such Principal Stockholder or the
Shares are bound or affected, except, in
the case of clauses (ii) and (iii), for any
such conflicts, violations,
breaches, defaults or other occurrences
which would not prevent or delay in any
material respect the performance by such
Principal Stockholder of its
obligations under this Agreement.
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(b) The
execution and delivery of this Agreement by each Principal
Stockholder do not, and the performance of
its obligations under this Agreement
by such Principal Stockholder shall not,
require any consent, approval,
authorization or permit of, or filing with
or notification to, any court or
arbitrator or any Governmental Entity,
agency or official except for applicable
requirements, if any, of the Exchange Act
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 Principal
Stockholder of its obligations under this
Agreement.
Section 2.3
OWNERSHIP OF SHARES. As of the date hereof, each
Principal Stockholder is the record and
beneficial owner of the Shares free and
clear of Liens set forth opposite such
Principal Stockholder's name on SCHEDULE
A attached hereto, and, subject, in the
case of Beacon, to the Beacon Exception,
has the sole authority to direct the voting
of such Shares in accordance with
the provisions of this Agreement and the
sole power of disposition with respect
to such Shares, with no restrictions,
subject to applicable federal securities
laws on its rights of disposition
pertaining thereto (other than Liens or
restrictions created by this Agreement, the
Beacon Trust Agreement, the
Securities Purchase Agreement and the
Recapitalization and Merger Agreement). As
of the date hereof, no Principal
Stockholder owns ben
