EXHIBIT 10.1
SUBSCRIPTION AGREEMENT FOR SHARES
OF 91/4% SERIES A CUMULATIVE
PREFERRED STOCK OF HARD ROCK HOTEL, INC.
This Subscription Agreement is made by and between Hard Rock Hotel,
Inc., a Nevada corporation (the "Company") and Xxxxx Xxxxxx, an individual
("Xx. Xxxxxx"), who is subscribing hereby for shares of the Company's 91/4%
Series A Cumulative Preferred Stock (the "Shares").
In consideration of the Company's agreement to sell the Shares to Xx.
Xxxxxx upon the terms and conditions set forth herein, Xx. Xxxxxx agrees and
represents as follows:
A. SUBSCRIPTION
1. Xx. Xxxxxx hereby subscribes to purchase 2,500 Shares at $1,000 per
Share. Simultaneously with the execution of this Subscription Agreement, Xx.
Xxxxxx is paying and delivering to the Company $2,500,000 in the form of a
check or wire transfer (the "Payment") payable to Hard Rock Hotel, Inc.
2. The closing of the purchase and sale of the Shares (the "Closing")
shall occur on August 31, 1999.
3. At the Closing, against delivery of the Payment by Xx. Xxxxxx, the
Company shall deliver to Xx. Xxxxxx a certificate representing the Shares
registered in such name as Xx. Xxxxxx may request.
B. REPRESENTATIONS AND WARRANTIES
Xx. Xxxxxx hereby represents and warrants to, and agrees with the
Company as follows:
(a) The Shares are being purchased for Xx. Xxxxxx'x own account, for
investment purposes only, and not for the account of any other person or
entity, and not with a view to distribution, assignment, or resale to
others or to fractionalization in whole or in part and that the offering
and sale of the Shares is intended to be exempt from registration under the
Securities Act of 1933 (the "Act") by virtue of Section 4(2) of the Act.
(b) The person executing this Subscription Agreement on behalf
of Xx. Xxxxxx has been duly authorized and is duly qualified (A) to execute
and deliver this Subscription Agreement and all other instruments executed
and delivered on behalf of Xx. Xxxxxx in connection with the purchase of
the Shares and (B) to purchase and hold Shares.
C. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with Xx. Xxxxxx
as follows:
1. CORPORATE FORM. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada
and has all requisite corporate power and authority to own or lease and
operate its properties and to carry on its business as now conducted.
2. CORPORATE AUTHORITY. The Company has all requisite corporate power
and authority to enter into and perform all of its obligations under this
Agreement and to issue the Shares and to carry out the transactions
contemplated hereby.
3. ACTION AUTHORIZED. The Company has taken all actions necessary to
authorize it to enter into and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Company and constitutes a legal,
valid and binding obligation of the Company, enforceable in accordance with
its terms. The Shares, when issued and delivered in accordance with the terms
hereof, will be duly and validly issued, fully paid and nonassessable.
4. REQUIRED FILINGS AND APPROVALS. Neither the nature of the Company
or of its business or properties, nor any circumstance in connection with the
offer, issuance, sale or delivery of the Shares as contemplated hereby, is
such as to require a consent, approval or authorization of, or filing,
registration or qualification with, any governmental authority on the part of
the Company as a condition to the execution and delivery of this Agreement or
the offer, issuance, sale or delivery of the Shares at the Closing, other
than the filings, registrations or qualifications under (i) Regulation D
under the Act and (ii) the state securities laws or "blue sky" laws of any
state of the United States of America that may be required to be made or
obtained, all of which the Company will comply with prior to the date of the
Closing.
5. NO CONFLICTS. None of the execution, delivery or performance of
this Agreement by the Company will conflict with the Second Amended and
Restated Articles of Incorporation, as amended or the Second Amended and
Restated By-laws of the Company or result in any
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breach of, or constitute a default under any material contract, agreement or
instrument to which the Company is a party or by which it or any of its
assets is bound.
D. MISCELLANEOUS
1. All pronouns and any variations thereof used herein shall be deemed
to refer to the masculine, feminine, singular, or plural as the identity of
the person or persons may require.
2. Neither this Subscription Agreement nor any provisions hereof shall
be waived, modified, changed, discharged, terminated, revoked, or cancelled
except by an instrument in writing signed by the party against whom any
change, discharge, or termination is sought.
3. Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally
delivered or sent by registered mail, return receipt requested, addressed to:
the Company at 0000 Xxxxxxxx Xxxx, Xxx Xxxxx, XX 00000 or Xx. Xxxxxx at 000
Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, XX 00000.
4. Failure of the Company to exercise any right or remedy under this
Subscription Agreement or any other agreement between the Company and Xx.
Xxxxxx, or otherwise, or delay by the Company in exercising such right or
remedy, will not operate as a waiver thereof. No waiver by the Company will
be effective unless and until it is in writing and signed by the Company.
5. This Subscription Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the State of Nevada,
as such laws are applied by Nevada courts to agreements entered into and to
be performed in Nevada and shall be binding upon Xx. Xxxxxx, Xx. Xxxxxx'x
legal representatives, successors and assigns and shall inure to the benefit
of the Company and its successors and assigns.
6. In the event that any provision of this Subscription Agreement is
invalid or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule
of law. Any provision hereof which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of any other
provision hereof.
7. This Subscription Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and supersede
any and all prior or contemporaneous representations, warranties, agreements
and understandings in connection therewith. Except as otherwise provided in
this Article D, this agreement may be amended only by a writing executed by
all parties hereto.
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THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED
UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT OR AN EXEMPTION THEREFROM IS
AVAILABLE.
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IN WITNESS WHEREOF, the Company and Xxxxx Xxxxxx have executed this Agreement
as of the date first above written.
HARD ROCK HOTEL, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
Title: Chairman of the Board,
Chief Executive Officer,
President and Secretary
Number of shares of the XXXXX XXXXXX, AN INDIVIDUAL
Preferred Stock of the Company
subscribed for by Xxxxx Xxxxxx:
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx
2,500
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Shares
Method of Payment for
the Stock by Purchaser:
$2,500,000 by wire transfer of funds or certified or bank cashier's check.
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