Exhibit 10.42b
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement"), is made effective as of
the 18th day of April, 2003, by and between Xxxxx X. Xxxxxx (the "Subscriber")
and JAGI Subsidiary, Inc., a Delaware corporation, having an address at 0000 X.
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000 (the "Corporation").
W I T N E S S E T H:
WHEREAS, the Subscriber desires to purchase shares of the common stock,
par value $0.01 per share, of the Corporation ("Common Stock").
WHEREAS, the Corporation and the Subscriber desire to set forth the
terms upon which the shares of Common Stock are offered and purchased; and the
Corporation, for the purpose of assuring compliance with the various securities
laws, desires to confirm certain representations and warranties of the
Subscriber.
NOW, THEREFORE, in consideration of the premises and the terms,
provisions, covenants and conditions hereinafter set forth, and for other
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereby agree as follows:
1. Subscription.
(a) Upon the execution and delivery of this Agreement by the
parties, the Corporation shall sell and issue to the Subscriber Eight Hundred
Eighty and 8/1000 (880.008) shares of the Common Stock, in consideration for the
contribution by Subscriber of Eight Hundred Eighty Thousand Eight ($880,008.00)
Dollars (the "Purchase Price"), being a price per share of One Thousand
($1,000.00) Dollars.
(b) Payment for the shares of Common Stock is being made by
the Subscriber by delivery of cash in an amount equal to Eight and 80/100
($8.80) Dollars and a promissory note in the principal amount Eight Hundred
Seventy Nine Thousand Nine Hundred Ninety Nine and 20/100 ($879,999.20) Dollars.
2. Legend. Each certificate or document representing the Common Stock
issued pursuant to this Agreement shall be imprinted with, among others, a
legend substantially as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAW. THE SECURITIES MAY NOT BE PLEDGED, HYPOTHECATED, SOLD OR
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933
OR ANY APPLICABLE STATE SECURITIES LAW OR AN EXEMPTION
THEREFROM UNDER SUCH ACT OR LAW.
3. Representations and Warranties of the Corporation. The Corporation
represents and warrants that:
3.1 Authority. The Corporation has the power and authority to
execute, deliver and carry out the terms of this Agreement and all instruments
delivered by the Corporation pursuant to or in connection with this Agreement.
This Agreement constitutes the legal, valid and binding obligation of the
Corporation and is enforceable against it in accordance with its terms.
3.2 Corporate Organization. The Corporation is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware.
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Exhibit 10.42b
3.3 Common Stock. The Corporation hereby represents and
warrants that the Common Stock represents legally issued, fully paid and
non-assessable capital stock of the Corporation.
4. Special Agreements of the Subscriber. The Subscriber acknowledges
and agrees as follows:
(i) contemporaneously with the execution and delivery of this
Agreement, the Corporation and Janus are entering into a Purchase and Sale
Agreement pursuant to which Janus is selling, assigning and transferring to the
Corporation all of its right title and interest in and to five limited liability
companies which own hotel properties, in exchange for shares of the
Corporation's Series A Preferred Stock; and
(ii) it is a condition precedent under said Purchase and Sale
Agreement that the Subscriber acquire the Common Stock for the Purchase Price
and make certain agreements with respect to the governance of the Corporation.
Accordingly, the Subscriber hereby agrees that he will take
all actions as a controlling shareholder of Janus and a stockholder of the
Corporation to cause the Corporation to have a Board of Directors comprised of
the same individuals who serve on the Janus Board of Directors.
5. Miscellaneous.
5.1 Severability. In the event any provision of this Agreement shall be
held invalid or unenforceable by any court, such holding shall not invalidate or
render unenforceable any other provision of this Agreement and each and every
other provision of this Agreement shall continue in full force and effect.
5.2 Entire Agreement; Binding Effect. This Agreement contains the
entire agreement of the parties with respect to the subject matter hereto, and
shall inure to the benefit of and be binding upon the parties hereto and upon
their successors in interest of any kind whatsoever, including, but not limited
to, their heirs, executors, administrators, guardians, trustees,
attorneys-in-fact and legal and personal representatives.
5.3 Waiver of Breach. The waiver by any party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach by any party.
5.4 Amendment. Any modification, waiver, amendment or termination of
this Agreement or any provision hereof shall be effective only if in writing and
signed all parties to this Agreement.
5.5 Assignment. The Subscriber shall not be permitted to assign any of
its rights, interests or obligations hereunder without the express written
consent of the Corporation.
5.6 Governing Law. This Agreement shall be construed pursuant to the
laws of the State of New York in effect at the time of such construction without
regard to its rules or laws concerning choice of laws.
5.7 Counterparts. This Agreement may be executed in one or more
counterparts in which event all of said counterparts shall be deemed to be
originals of this Agreement.
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Exhibit 10.42b
IN WITNESS WHEREOF, each party hereto has executed this Agreement as of
the day and year first above written.
THE SUBSCRIBER:
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
THE CORPORATION:
JAGI Subsidiary, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President of Finance
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