EXHIBIT 10.8
COLONY RIH HOLDINGS, INC.
SECURITIES PURCHASE AGREEMENT
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March 22, 2002
[Investor]
______________ (the "Investor") hereby agrees with Colony RIH Holdings,
Inc., a Delaware corporation (the "Company"), as follows:
1. PURCHASE AND SALE OF SECURITIES
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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
Stock"), and Class B non-voting common stock, par value $.01 per share ("Class B
Stock"), 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.
2. REPRESENTATIONS AND WARRANTIES
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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,
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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
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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
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be validly issued and outstanding, fully paid and nonassessable, and
shall, together with the Investor's current holdings, represent ___%
of the Class A Stock and ___% of the Class B Stock of the Company then
issued and outstanding.
(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
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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
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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.
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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
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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 time that Rule 144 promulgated under the Securities Act by
the Commission ("Rule 144") is not applicable to sales of the Class B
Stock because they are not registered under Section 12 of the Exchange
Act 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
Class B Stock 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
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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
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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
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investor" as such term is defined by the Securities Act.
3. INTERPRETATION OF THIS AGREEMENT
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(a) Terms Defined. As used in this Agreement, the following terms have
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the respective meaning set forth below:
Exchange Act: the Securities Exchange Act of 1934, as amended.
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Person: an individual, partnership, joint-stock company,
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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.
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Transfer: any sale, assignment, pledge, hypothecation, or other
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disposition or encumbrance.
(b) Directly or Indirectly. Where any provision in this Agreement
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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
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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
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this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
4. MISCELLANEOUS
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(a) Notices.
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(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; and
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(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
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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.
(c) Successors and Assigns. This Agreement shall inure to the benefit
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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
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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
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counterparts (including by facsimile), 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:
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President and Treasurer
ACCEPTED & AGREED:
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[Signature Page]
SCHEDULE I
PURCHASES OF SECURITIES BY _________________
Number of Shares Price Per Share Number of Price Per Share
of Class A Common of Class A Shares of Class B of Class B Common Total
Stock Common Stock Common Stock Stock Consideration
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