Exhibit 10.13
COLONY RIH HOLDINGS, INC.
SECURITIES PURCHASE AGREEMENT
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April 25, 2001
Colony RIH Voteco, LLC
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Xx.
Colony RIH Voteco, LLC, a Delaware limited liability company
(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 ("Class A Common Stock"), set forth on Schedule I hereto (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.
(a) Additional Issuances. Until the date that is three years
from the date hereof, in the event that the Investor determines in its sole and
absolute discretion, the Investor shall have the right to purchase additional
shares of Class A Common Stock, in one or more tranches, at a cash purchase
price of $0.475 per share. The Investor's notice to the Company shall specify a
date for the closing of the purchase which shall not be more than thirty (30)
days nor less than ten (10) days after the date of the giving of such notice,
and shall state the number of shares of Class A Common Stock to be acquired.
With respect to such future issuances of Class A Common Stock, the Investor will
execute a securities purchase agreement substantially in the form of this
agreement.
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 95.00% of the Class A 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 agreement, dated even date herewith between the Company and
Colony Investors IV, L.P.
(b) The Investor acknowledges and agrees that it is relying
solely on its own knowledge of the business and operations of the Company and
its 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 it has requested regarding the Company's 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 it is capable
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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 the Investor must bear the economic risk of this
investment indefinitely unless its 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 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. 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.
Person: an individual, partnership, joint-stock company,
corporation, limited liability company, trust or unincorporated organization,
and a government or agency or political subdivision thereof.
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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.
4. 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 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.
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(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:
COLONY RIH VOTECO, LLC
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Managing Member
[Signature Page]
SCHEDULE I
PURCHASES OF SECURITIES BY COLONY RIH VOTECO, LLC
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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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19,950 $0.0475 0 $100 $950
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