EXHIBIT 10.23
ASHFORD HOSPITALITY TRUST, INC.
SUBSCRIPTION AGREEMENT
Ashford Hospitality Trust, Inc.
00000 Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Re: Private Placement of Securities
Gentlemen:
This SUBSCRIPTION AGREEMENT (this "Agreement"), is intended to set
forth certain representations, warranties, covenants, acknowledgments and
agreements of the undersigned (the "Subscriber") with Ashford Hospitality Trust,
Inc., a Maryland corporation and real estate investment trust (the "Company").
THE SUBSCRIBER UNDERSTANDS THAT THE COMMON STOCK OF THE COMPANY IS
ILLIQUID AND INVOLVES A HIGH DEGREE OF SPECULATIVE RISK.
THE SUBSCRIBER FURTHER UNDERSTANDS THAT THE COMMON STOCK HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND THAT WITHOUT SUCH
REGISTRATION, SUCH COMMON STOCK MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED, EXCEPT UPON DELIVERY TO COMPANY OF AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED FOR SUCH TRANSFER,
OR SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO
THE COMPANY TO THE EFFECT THAT SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE
ACT, OR ANY OTHER APPLICABLE SECURITIES LAWS OR ANY RULE OR REGULATION
PROMULGATED THEREUNDER.
THE SUBSCRIBER FURTHER UNDERSTANDS THAT THE DOCUMENTS, RECORDS, BOOKS
AND OTHER INFORMATION PROVIDED TO THE SUBSCRIBER IN CONNECTION WITH THE
SUBSCRIPTION HEREUNDER IS FOR THE SUBSCRIBER'S CONFIDENTIAL USE ONLY AND MAY NOT
BE REPRODUCED IN ANY MANNER OR MADE AVAILABLE TO ANY OTHER PERSON, OTHER THAN
THE SUBSCRIBER'S ATTORNEYS, ACCOUNTANTS AND REPRESENTATIVES, IF ANY. ANY ACTION
IN VIOLATION OF THE PRECEDING SENTENCE MAY PLACE THE SUBSCRIBER AND THE COMPANY
IN VIOLATION OF SECURITIES LAWS, INCLUDING THE ACT AND THE TEXAS SECURITIES ACT
(DEFINED BELOW).
1. Subscription. Subject to the terms and conditions hereof, the
Subscriber hereby subscribes for and agrees to purchase TWO HUNDRED AND
FIFTY THOUSAND (250,000) shares (the "Subscription") of the Company's
Common Stock, $0.01 par value (the "Securities"), at a price per share
(the "Purchase Amount") equal to the offering price, net of an amount
equal to the underwriting discount, as more particularly described
in the Form S-11 as filed with the Securities and Exchange Commission
on May 14, 2003 (the "Offering"), a copy of which has been delivered to
and reviewed by the Subscriber. The Purchase Amount shall be due and
payable to the Company at the closing of the Offering. In respect of
such Subscription, the Subscriber delivers herewith, to the attention
of the Company at the address of the Company set forth above, along
with this Agreement, (i) two original signature pages of this
Agreement, (ii) two originals of the Spousal Consent, attached hereto
as Exhibit I , signed by the Subscriber's spouse, and (iii) a fully
completed Investor Information Sheet and Accredited Investor
Questionnaire, attached hereto as Exhibits II and III, respectively.
2. Acceptance of Subscription; Delivery of Securities. The Subscriber
understands and agrees that this Subscription is made subject to the
following terms and conditions:
(a) The Company shall have the right to reject this Subscription,
in whole but not in part, if (i) the Subscriber fails to make
the deliveries to the Company set forth in Section 1 above, or
(ii) the Company, in its sole discretion, determines that the
offer of issuance of the Securities to the Subscriber would
not qualify for exemption from the securities laws as provided
herein below;
and
(b) The Securities to be issued and delivered on account of this
Subscription will only be registered in the name of, and
delivered to, the Subscriber upon receipt by the Company of
the items listed in Section 1, subject to Section 2(a) above,
and the Subscriber agrees to comply with the terms of this
Agreement and to execute any and all further documents
necessary in connection with this Subscription.
3. Representations and Warranties of the Subscriber. The Subscriber
understands (i) that the Securities are being offered and sold under an
exemption from registration under the Act and the Texas Securities Act
of 1957, as amended (the "Texas Securities Act") or the Rules and
Regulations promulgated thereunder, (ii) that this transaction has not
been scrutinized by the Securities and Exchange Commission or by any
agency charged with the administration of the securities laws of the
State of Texas or any other State or jurisdiction, (iii) that all
documents, records, books and other information pertaining to this
investment have been made available to the Subscriber and the
Subscriber's representatives, including the Subscriber's attorneys,
accountants and purchaser representative, if any, and (iv) that the
books and records of the Company will be available upon reasonable
notice for inspection by investors during reasonable business hours at
the address of the Company set forth above. The Subscriber hereby
represents and warrants as follows:
(a) This Agreement is a valid and legally binding obligation of
the Subscriber, enforceable in accordance with its terms
except as affected by (i) bankruptcy law and (ii) equitable
principles, and the Subscriber has full power and authority to
enter in this Agreement;
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(b) The Subscriber is an "accredited investor" within the meaning
of Rule 501(a) of Regulation D under the Act, as represented
by the Subscriber in the Accredited Investor Questionnaire
delivered by the Subscriber pursuant to Section 1;
(c) The Subscriber is a resident of the State of Texas;
(d) This investment pursuant to the Subscription does not exceed
twenty percent (20%) of the Subscriber's net worth (or joint
net worth with the Subscriber's spouse);
(e) The Subscriber is able (i) to bear the economic risk of this
investment, (ii) to hold the Securities indefinitely, and
(iii) at present, to afford a complete loss of this
investment;
(f) The Subscriber has adequate means of providing for current
needs and personal contingencies and has no need for liquidity
in this investment;
(g) The Subscriber or the Subscriber's purchaser representative,
if any, has knowledge of finance, securities and investments
generally, and has the experience and skill necessary to
evaluate the merits and risks of this investment and make an
informed investment decision;
(h) The Subscriber has received and reviewed such information
concerning (i) the Company, (ii) the operations and financial
condition of the Company and (iii) the Securities, as the
Subscriber deems necessary or desirable for the investment
decision required in connection with this Subscription;
(i) The Subscriber, in making the decision to purchase the
Securities, has relied solely upon independent investigations
made by the Subscriber or the Subscriber's purchaser
representative, if any, or other representatives of the
Subscriber, including professional tax and other advisors, and
the Subscriber and such representatives and advisors have been
given the opportunity to ask questions of, and to receive
answers from, persons acting on behalf of the Company
concerning the terms and conditions of this offering, and to
obtain any additional information, to the extent such persons
possess such information or can acquire it without
unreasonable effort or expense, necessary to verify the
accuracy of the information provided to the Subscriber or such
representatives of the Subscriber;
(j) The Securities hereby subscribed are being acquired by the
Subscriber in good faith solely for the Subscriber's own
account, for investment purposes only, and are not and will
not be acquired for resale, resyndication, distribution,
subdivision or fractionalization thereof; the Subscriber has
no contract or arrangement with any person to sell, pledge,
hypothecate or otherwise transfer to any person the Securities
or any part thereof; the Subscriber has no present plans to
enter into any such contract or arrangement; and the
Subscriber understands that as a result the Subscriber must
bear the economic risk of the investment for an indefinite
period of time because the Securities have not been registered
under the Act or the
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securities laws of any State or other jurisdiction and,
therefore, cannot be sold, pledged, hypothecated or otherwise
transferred unless they are subsequently registered under the
Act and other applicable securities laws (which the Company is
not obligated to do, and has no present intention of doing) or
unless an exemption from such registration is available;
(k) The Subscriber understands that no federal or state agency has
passed on or made any recommendation or endorsement of the
Securities and that the Company is relying on the truth and
accuracy of the representations, warranties, covenants,
acknowledgments and agreements herein made by the Subscriber
in offering the Securities for sale to the Subscriber without
having first registered the same under the Act or any other
applicable securities laws;
(l) The funds provided by the Subscriber for this investment are
either separate property of the Subscriber, community property
over which the Subscriber has the right of control or are
otherwise funds as to which the Subscriber has the sole right
of management; and
(m) The Subscriber understands that the Securities are subject to
the limitations set forth in paragraph (2)-(4) of Section
109.13(j) of the Regulations promulgated under the Texas
Securities Act.
4. Legends. The Subscriber consents to the placement of a legend on any
certificate evidencing the Securities, which legend shall be in form
substantially as follows:
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION. WITHOUT SUCH REGISTRATION,
SUCH SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED EXCEPT UPON DELIVERY TO ASHFORD
HOSPITALITY TRUST, INC. (THE "COMPANY") OF AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT
REQUIRED FOR SUCH TRANSFER OR THE SUBMISSION TO THE COMPANY OF
SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO THE COMPANY TO
THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE
STATE OR FOREIGN SECURITIES LAWS OR ANY RULE OR REGULATION
PROMULGATED THEREUNDER.
5. Transferability. The Subscriber agrees not to sell, pledge, hypothecate
or otherwise transfer the Securities without registration under the Act
and any other applicable securities laws or without exemptions
therefrom.
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6. Revocation. This Agreement may not be canceled, terminated or revoked
by the Subscriber, shall survive the death or disability of the
Subscriber and shall be binding upon the Subscriber's heirs, executors,
administrators, successors and assigns.
7. No Waiver. Notwithstanding any of the representations, warranties,
covenants, acknowledgments or agreements made herein by the Subscriber,
the Subscriber does not hereby or in any other manner waive any rights
granted to the Subscriber under federal or state securities laws.
8. Miscellaneous.
(a) All notices or other communications given or made hereunder
shall be in writing and shall be delivered or mailed by
registered or certified mail, return receipt requested,
postage prepaid, to the Subscriber at the address set forth on
Exhibit II or to the Company at the address for the Company
set forth above.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland.
(c) This Agreement constitutes the entire agreement among the
Company and the Subscriber with respect to the subject matter
hereof and may be amended only by a writing executed by the
Company and the Subscriber.
(d) Neither this Agreement nor any interest herein may be
transferred or assigned by the Subscriber.
(e) Captions herein are inserted for the convenience of reference
only and shall be ignored in construction or interpretation of
this Agreement.
9. Waiver of Suitability Standards. The Company reserves the right to
review the suitability of any person (or entity) desiring to purchase
the Securities and in connection with such review to waive such
suitability standards as to such person (or entity) as the Company
deems appropriate under applicable law.
10. Acknowledgments of the Subscriber.
The Subscriber acknowledges that:
(a) There have been no representations, guarantees or warranties
made to the Subscriber by the Company, any officers, directors
or shareholders of the Company, their agents or employees or
any other person, expressly or by implication, with respect
to:
(i) The length of time that the Subscriber will be
required to remain as owner of the Securities;
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(ii) The percentage of profit or amount of or type of
consideration, profit or loss (including tax
write-offs or tax benefits) to be realized, if any,
as a result of this investment; and
(iii) The possibility that the past performance or
experience on the part of the Company or any of its
affiliates or employees might in any way indicate the
predictable results of the ownership of the
Securities or the relative success of the Company;
(b) This investment is speculative and involves a high degree of
risk;
(c) The Subscriber has had full and complete access to all
financial and business information relating to the Company;
and
(d) The offer and issuance of the Securities to the Subscriber
have not been accomplished by any form of general solicitation
or general advertising, including, but not limited to, (i) any
advertisement, article, notice or other communication
published in any newspaper, magazine or similar media, or
broadcast over television or radio, and (ii) any seminar or
meeting whose attendees have been invited by any general
solicitation or general advertising.
11. Continuing Effect of Representations, Warranties and Acknowledgments.
The representations, warranties and acknowledgments contained herein
are true and accurate as of the date of this Agreement and shall be
true and accurate as of the date of delivery of the purchase price, the
executed signature pages of this Agreement and the other items listed
in Section 1 and shall survive such delivery. If in any respect such
representations, warranties and acknowledgments shall not be true and
accurate prior to such delivery, the Subscriber shall give immediate
written notice of such fact to the Company, specifying which
representations, warranties and acknowledgments are not true and
accurate and the reasons therefor.
12. Indemnification. The Subscriber understands the meaning and legal
consequences of the representations, warranties and acknowledgments
contained herein, and hereby agrees to indemnify and hold harmless the
Company, its officers, directors, or shareholders and any of its
agents, representatives or employees, from and against any and all
loss, damage or liability (including costs and reasonable attorney
fees) due to or arising out of a breach of any representation, warranty
or acknowledgment of the Subscriber contained in this Agreement or
arising out of the Act, the Texas Securities Act or any other
securities laws.
[Signature page follows]
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The Subscriber, desiring to enter into this Agreement for the
Subscription of the Securities, hereby agrees to all of the terms and provisions
of this Agreement and agrees to be bound by all such terms and provisions. The
Subscriber has executed this Agreement as of the 15th day of May, 2003.
SUBSCRIBER:
By: /s/ XXXXXXXXXX X. XXXXXXX
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Xxxxxxxxxx X. Xxxxxxx
ASHFORD HOSPITALITY TRUST, INC. hereby accepts the foregoing
subscription subject to the terms and conditions of this Agreement as of the
15th day of May, 2003.
COMPANY:
ASHFORD HOSPITALITY TRUST, INC.
By: /s/ XXXXXXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxxxxxx X. Xxxxxxx
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Title: President
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