Exhibit 10.12
COLONY RIH HOLDINGS, INC.
SECURITIES PURCHASE AGREEMENT
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April 25, 2001
Xx. Xxxxxxxx X. Xxxxx
X.X. Xxx 0000
Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Xxxxxxxx X. Xxxxx (the "Investor") hereby agrees with Colony
RIH Holdings, Inc., a Delaware corporation (the "Company"), as follows:
1. PURCHASE AND SALE OF SECURITIES
Subject to the terms and conditions hereof, the Company is
selling to the Investor and the Investor is purchasing from the Company the
number of shares of the Company's Class A voting common stock, par value $.01
per share, and Class B non-voting common stock, par value $.01 per share, set
forth on Schedule I hereto (collectively, the "Securities") for the aggregate
amount in cash set forth on Schedule I hereto. Such sale and purchase shall be
effected by the Company delivering to the Investor duly endorsed certificates
evidencing the Securities to be purchased or subscribed against delivery by the
Investor to the Company of the applicable amount set forth on Schedule I. All
payments for Securities shall be made by check or wire transfer. Upon receipt of
certificates evidencing the Securities, the Investor will execute all
documentation reasonably necessary to make it a party to the Stockholders
Agreement, dated of even date herewith (the "Stockholders Agreement"), the form
of which is attached as Exhibit A hereto.
2. REPRESENTATIONS AND WARRANTIES
Neither the Company nor any other Person makes any
representation or warranty herein with respect to the Securities or the business
and operations of the Company except as follows:
(a) The Company represents and warrants that:
(i) Existence. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company owns all of the issued and outstanding shares of capital
stock of Colony RIH Acquisitions, Inc., a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) Authorization and Enforceability. The Company has
full power and authority and has taken all required corporate and other action
necessary to permit it to execute and deliver this Agreement and to perform the
terms hereof and to issue and deliver the
Securities, and none of such actions will violate any provision of the Charter
or the Bylaws of the Company. This Agreement constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms.
(iii) Issuance of Securities. Upon issuance the
Securities will be validly issued and outstanding, fully paid and nonassessable,
and shall represent 5.00% of the Class A voting common stock and 5.00% of the
Class B non-voting common stock of the Company then issued and outstanding.
(iv) Capitalization. The equity capitalization of the
Company is as set forth on Exhibit B hereto. Other than as set forth on Exhibit
B, there are no existing options, convertible securities, warrants, calls or
commitments of any character relating to any unissued shares of capital stock
other than as contemplated in (i) the Stockholders Agreement or (ii) the
securities purchase agreements, dated of even date herewith between (x) the
Company and Colony Investors IV, L.P. and (y) the Company and Colony RIH Voteco,
LLC.
(b) The Investor acknowledges and agrees that he is relying
solely on his own knowledge of the business and operations of the Company and
his own evaluation of the merits and risks of the investment contemplated by
this Securities Purchase Agreement (the "Agreement"). In addition, the Investor
represents and warrants that:
(i) Offering Exemption. The Investor understands that the
Securities have not been registered under the Securities Act, nor qualified
under any state securities laws, and that they are being offered and sold
pursuant to an exemption from such registration and qualification based in part
upon the representations of the Investor contained herein.
(ii) Knowledge of Offer. The Investor is familiar with the
business and operations of the Company and has been given the opportunity to
obtain all information that he has requested regarding its business plans and
prospects.
(iii) Knowledge and Experience; Ability to Bear Economic
Risks. The Investor has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of the investment
contemplated by this Agreement. The Investor is able to bear the economic risk
of its investment in the Company (including a complete loss of its investment).
(iv) Limitations on Disposition. The Investor recognizes
that no public market exists for the Securities and no representation has been
made to the Investor that such public market will exist in the future. The
Investor understands that he must bear the economic risk of this investment
indefinitely unless his Securities are registered pursuant to the Securities Act
or an exemption from such registration is available, and unless the disposition
of such Securities is qualified under applicable state securities laws or an
exemption from such qualification is available, and that except as provided in
Section 5 hereof, the Company has no obligation or present intention of so
registering the Securities. The Investor further understands that there is no
assurance that any exemption from the Securities Act will be available, or, if
available, that such exemption will allow the Investor to Transfer any or all of
the Securities, in the amounts, or at the time the Investor might propose. The
Investor understands at the present
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time that Rule 144 promulgated under the Securities Act by the Commission ("Rule
144") is not applicable to sales of the Securities because they are not
registered under Section 12 of the Exchange Act (as hereinafter defined) and
there is not publicly available the information concerning the Company specified
in Rule 144. The Investor further acknowledges that the Company is not presently
under any obligation to register the Securities under Section 12 of the Exchange
Act or to make publicly available the information specified in Rule 144 and that
it may never be required to do so.
(v) Investment Purpose. The Investor is acquiring the
Securities solely for its own account for investment and not with a view toward
the resale, Transfer, or distribution thereof, nor with any present intention of
distributing the Securities. No other Person has any right with respect to or
interest in the Securities to be purchased by the Investor, nor has the Investor
agreed to give any Person any such interest or right in the future.
(vi) Capacity. The Investor has full power and legal
right to execute and deliver this Agreement and to perform its obligations
hereunder.
(vii) Accredited Investor. The Investor is an "accredited
investor" as such term is defined by the Securities Act.
3. COMPANY CLOSING CONDITIONS.
The obligation of the Company to issue and deliver the
Securities shall be subject to the performance by the Investor of its agreements
theretofore to be performed hereunder and to the satisfaction, prior thereto or
concurrently herewith, of the following further conditions:
(a) The Investor shall have executed the Stockholders
Agreement, the form of which is attached as Exhibit A hereto.
4. INVESTOR CLOSING CONDITIONS.
The obligation of the Investor to purchase and pay for the
Securities shall be subject to the performance by the Company of its agreements
theretofore to be performed hereunder and to the satisfaction, prior thereto or
concurrently herewith, of the following further conditions:
(a) The Company shall have executed the Vice Chairman's
Agreement, the form of which is attached as Exhibit C hereto.
5. INTERPRETATION OF THIS AGREEMENT
(a) Terms Defined. As used in this Agreement, the following
terms have the respective meaning set forth below:
Company: Colony RIH Holdings, Inc., a Delaware corporation.
Exchange Act: the Securities Exchange Act of 1934, as amended.
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Person: an individual, partnership, joint-stock company,
corporation, limited liability company, trust or unincorporated organization,
and a government or agency or political subdivision thereof.
Securities Act: the Securities Act of 1933, as amended.
Transfer: any sale, assignment, pledge, hypothecation, or
other disposition or encumbrance.
(b) Directly or Indirectly. Where any provision in this
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed entirely within such State.
(d) Section Headings. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
6. MISCELLANEOUS
(a) Notices.
(i) All communications under this Agreement shall be in
writing and shall be delivered by hand or mailed by overnight courier or by
registered or certified mail, postage prepaid:
(A) if to the Company, at 0000 Xxxxxxxxx, Xxxxxxxx
Xxxx, XX 00000, marked for attention of President, or at such other address as
the Company may have furnished the Investor in writing;
(B) if to the Investor, at address listed above, or at
such other address as the Investor may have furnished the Company in writing.
(ii) Any notice so addressed shall be deemed to be given:
if delivered by hand, on the date of such delivery; if mailed by courier, on the
first business day following the date of such mailing; and if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
(b) Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, (i) consents, waivers
and modifications which may hereafter be executed, (ii) documents received by
the Investor pursuant hereto (except for certificates evidencing the Securities)
and (iii) financial statements, certificates and other information previously or
hereafter furnished to the Investor, may be reproduced by the Investor by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and the Investor may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original
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itself in any judicial or administrative proceeding (whether or not the original
is in existence and whether or not such reproduction was made by the Investor in
the regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
(c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(d) Amendment and Waiver. This Agreement may be amended, and
the observance of any term of this Agreement may be waived, with, and only with,
the written consent of the Company and the Investor.
(e) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
[Signature Page Follows]
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Very truly yours,
COLONY RIH HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President and Treasurer
ACCEPTED & AGREED:
/s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
[Signature Page]
SCHEDULE I
PURCHASES OF SECURITIES BY XXXXXXXX X. XXXXX
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Price Per Share of
Number of Shares of Class A Price Per Share of Number of Shares of Class B Common
Common Stock Class A Common Stock Class B Common Stock Stock Total Consideration
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1,050 $0.0475 21,250 $100 $2,125,050
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