SUBSCRIPTION AGREEMENT FOR SHARES
OF 9 1/4% 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 ▇▇▇▇▇ ▇▇▇▇▇▇, an individual ("▇▇.
▇▇▇▇▇▇"), who is subscribing hereby for shares of the Company's 9 1/4% Series A
Cumulative Preferred Stock (the "Shares").
In consideration of the Company's agreement to sell the Shares to ▇▇.
▇▇▇▇▇▇ upon the terms and conditions set forth herein, ▇▇. ▇▇▇▇▇▇ agrees and
represents as follows:
A. SUBSCRIPTION
1. ▇▇. ▇▇▇▇▇▇ hereby subscribes to purchase 5,500 Shares at $1,000 per
Share. Simultaneously with the execution of this Subscription Agreement, ▇▇.
▇▇▇▇▇▇ is paying and delivering to the Company $5,500,000, 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 October 1, 1999.
3. At the Closing, against delivery of the Payment by ▇▇. ▇▇▇▇▇▇, the
Company shall deliver to ▇▇. ▇▇▇▇▇▇ a certificate representing the Shares
registered in such name as ▇▇. ▇▇▇▇▇▇ may request.
B. REPRESENTATIONS AND WARRANTIES
▇▇. ▇▇▇▇▇▇ hereby represents and warrants to, and agrees with the
Company as follows:
(a) The Shares are being purchased for ▇▇. ▇▇▇▇▇▇'▇ 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 ▇▇.
▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
4. Failure of the Company to exercise any right or remedy under this
Subscription Agreement or any other agreement between the Company and ▇▇.
▇▇▇▇▇▇, 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 ▇▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇ have executed this Agreement as
of the date first above written.
HARD ROCK HOTEL, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman of the Board,
Chief Executive Officer,
President and Secretary
Number of shares of the ▇▇▇▇▇ ▇▇▇▇▇▇, AN INDIVIDUAL
Preferred Stock of the Company
subscribed for by ▇▇▇▇▇ ▇▇▇▇▇▇:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
5,500
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Shares
Method of Payment for
the Stock by Purchaser:
$5,500,000 by wire transfer of funds or certified or bank cashier's check.
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