EXHIBIT 10.26
EXECUTION VERSION
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as
of this 31st day of May, 2007 (the "Effective Date"), by and among Arrow
Partners LP, a Delaware limited partnership ("Arrow LP"), Arrow Capital
Management LLC, a Delaware limited liability company ("Arrow Capital"), and
Arrow Offshore Ltd., a Cayman Islands exempted company ("Arrow Cayman," and
together with Arrow LP, the "Buyers"), on the one hand, and SOF U.S. Hotel Co
Invest Holdings, L.L.C., a Delaware limited liability company ("SOF"), and
Rivacq LLC, a Delaware limited liability company ("Rivacq"), on the other hand.
Recitals
WHEREAS, Rivacq, SOF, Arrow LP, and Arrow Capital are parties to
that certain Option and Voting Agreement, dated as of August 3, 2006 (the
"Option Agreement"), pursuant to which, among other things, SOF granted to Arrow
Capital an option (the "Option") to purchase a 49% interest in Rivacq (the
"Minority Rivacq Interest").
WHEREAS, pursuant to that certain Assignment and Assumption
Agreement, dated December __, 2006, Arrow Capital assigned all of its rights in,
and delegated all of its duties under, the Option Agreement, jointly and
severally, to the Buyers, except that with respect to the Option, Arrow Capital
assigned all of its right, title and interest to purchase (a) 15% of the Rivacq
Minority Interest to Arrow Cayman, and (b) 34% of the Rivacq Minority Interest
to Arrow LP.
WHEREAS, the Buyers desire to purchase from Rivacq, and Rivacq
desires to sell to the Buyers, an aggregate of 307,447 shares (the "Shares") of
Common Stock of Riviera Holdings Corporation, a Nevada corporation ("Riviera"),
in exchange for the Purchase Price, as defined in Section 2.2 below (the
"Sale").
WHEREAS, concurrently with the Sale, the parties hereto desire to
terminate the Option Agreement and the Option.
NOW, THEREFORE, in consideration of the covenants set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Each capitalized term used, but not specifically defined
herein shall have the meaning set forth in the Option Agreement.
2. Sale and Purchase; Closing.
2.1 Sale and Purchase. On the Closing Date (as defined in Section 2.4),
Rivacq shall sell, transfer, convey, and assign (a) to Arrow LP, all right,
title and interest in and to 213,331 Shares, and (b) to Arrow Cayman, all right,
title and interest in and to 94,116 Shares, in each case, free and clear of any
and all Encumbrances, in exchange for the delivery by the Buyers of the Purchase
Price (as defined in Section 2.2).
2.2 Purchase Price. In consideration for the sale of the Shares pursuant
to Section 2.1, on the Closing Date, Arrow LP shall deliver to Rivacq the sum of
$3,451,825.02, and Arrow Cayman shall deliver to Rivacq the sum of $1,522,863.98
(collectively, the "Purchase Price"). The Purchase Price shall be delivered by
wire transfer of immediately available funds to an account designated by Rivacq.
2.3 Delivery. On the Closing, Rivacq shall deliver to the Buyers (a) a
certificate or certificates representing the Shares, and (b) all documents,
instruments, certificates and stock powers, necessary to transfer and assign the
Shares to the Buyers, against payment of the Purchase Price.
2.4 Closing. The Sale shall take place no later than two (2) business days
after the Legal Opinion (as defined in Section 4) has been delivered to, and
accepted by, the Buyers, Riviera and its transfer agent (the "Closing Date").
The closing of the Sale shall take place at such place and time as is mutually
agreeable to the parties hereto.
3. Reimbursement of Expenses. The parties acknowledge and agree that $362,984,
of the Purchase Price represents out-of-pocket and documented expenses incurred
by Rivacq to date in connection with the Merger and its merger negotiations with
Riviera (the "Expense Amount"). In the event that Rivacq receives, directly or
indirectly, from Riviera a topping fee, break-up fee, termination fee, or
similar fee in respect of the Merger or a merger agreement (each, a "Riviera
Fee"), Rivacq shall pay to the Buyers, no later than 5 business days after
receipt, 49% of the Riviera Fee; provided, that in no event shall the amount
payable by Rivacq pursuant to this Section 3 exceed the Expense Amount. As
between the Buyers, any amounts paid pursuant to this Section 3 shall be divided
in the same proportion as the Purchase Price was paid by the Buyers.
4. Covenants to Close. Rivacq, on the one hand, and the Buyers, on the other
hand, will each use their commercially reasonable to cause the Sale to be
consummate as soon as reasonably practicable after the date hereof. Without
limiting the generality of the foregoing, Rivacq shall cause to be delivered to
the Buyers, Riviera, and its transfer agent, a legal opinion (the "Legal
Opinion"), in form and substance reasonably satisfactory to such parties, that
the Sale of the Shares does not require registration under the Securities Act of
1933, as amended (the "Act").
5. Representations and Warranties of Rivacq. SOF and Rivacq, jointly and
severally, hereby represent and warrant to each Buyer that, as of the date
hereof and as of the Closing Date:
5.1 Rivacq is the record and beneficial owner of the Shares, has all
right, title, and interest in and to the Shares, and has all requisite power and
authority to sell, assign, transfer, and deliver the Shares to the Buyers, free
and clear of all Encumbrances. Upon payment by the Buyers of the Purchase Price
in accordance with this Agreement, and assuming that the Buyers are acting in
good faith and without any notice of any adverse claim (as defined in Section
8-102 of the New York Commercial Code), the Buyers will acquire the Shares free
of any adverse claim.
5.2 The Sale may be effectuated under the Act, and applicable state
securities laws without registering or qualifying the Shares thereunder.
5.3 Rivacq is not an "affiliate" of Riviera, as that term is defined in
paragraph (a)(1) of Rule 144 promulgated under the Act (Rule 144").
5.4 Rivacq purchased the Shares from an "affiliate" of Riviera, as that
term is defined in paragraph (a)(1) of Rule 144, and fully paid for 147,000 of
the Shares on January 6, 2006 and 160,447 of the Shares on August 4, 2006 and,
in each case, has held the Shares continuously since that time. The Shares were
acquired in a private transaction separate from any public offering and Rivacq
did not purchase such Shares with a view to distribution of the Shares in
violation of the Act.
5.5 Rivacq has not entered into any agreements with Riviera or any other
person or entity that would prohibit or limit Rivacq from selling, transferring,
or entering into any contracts or hedging activities relating to the Shares.
5.6 Rivacq has made no offers to sell the Shares, other than to the
Buyers.
5.7 Rivacq has not offered or sold the Shares by any form of general
solicitation or advertising.
6. Investment Representations and Warranties. Each Buyer hereby makes to Rivacq,
as of the date hereof and as of the Closing Date, the representations and
warranties set forth below (and agrees that (a) Riviera's transfer agent may
rely on the same for the purposes of transferring the Shares on the books and
records of the Company, and (b) Rivacq's counsel may rely on the same for the
purposes of rendering the Legal Opinion):
6.1 It has been informed that the Shares have not been registered under
the Act, or any state securities ("Blue Sky") law, are "restricted securities"
as defined in Rule 144, and must be held by it indefinitely at its economic risk
unless they are registered under the Act and applicable Blue Sky laws, or
exemptions from such registration are available.
6.2 It understands that Riviera is under no obligation to register the
sale, transfer or other disposition by it or on its behalf of the Shares under
the Act or any applicable Blue Sky law, or take any other action necessary in
order to make compliance with an exemption from registration available.
6.3 The Shares were offered and will be transferred by Rivacq to such
Buyer without any general solicitation or general advertising, including, but
not limited to, any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising.
6.4 It has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of investing in the
Shares, and that it is able to bear the economic risk of this investment.
6.5 It is an "accredited investor" within the meaning of Rule 501 of
Regulation D promulgated by the Securities and Exchange Commission under the
Act.
6.6 The Shares are being acquired by it for investment and not with a view
to, or in connection with, any distribution thereof nor with any present
intention of distributing such Shares.
6.7 It has been provided with copies of Riviera's Form 10-K for its latest
fiscal year, Riviera's Form 10-Q for its latest fiscal quarter, and any Forms
8-K prepared by Riviera since the date of such Form 10-Q, all as filed by
Riviera with the Securities and Exchange Commission.
7. Termination of Option Agreement. Arrow LP, Arrow Capital, Arrow Cayman, SOF
and Rivacq hereby mutually agree that, effective concurrently with the Closing
Date, the Option Agreement and the Option are hereby terminated and no longer
have any force or effect, including, without limitation, any provision of the
Option Agreement that purports to survive a termination of that agreement.
8. Mutual Release. Effective concurrently with the Closing Date, each of Rivacq
and SOF, on the one hand, and Arrow LP, Arrow Capital, and Arrow Cayman, on the
other hand, hereby fully and forever releases and discharges the other, together
with any and all of the other parties' present or former agents, stockholders,
members, partners, directors, officers, employees, principals, successors and
assigns (collectively the "Released Parties"), from and against any and all
claims, actions, suits, causes of action, judgments, liens, promises,
executions, debts, damages, demands, liabilities and controversies whatsoever,
or every nature and description, in law or in equity, whether known or unknown
and whether arising by statute, at common law or otherwise, which such party
ever had or now has against the Released Parties, from the beginning of the
world to the date of this Agreement, and which arise out of, or relate to, the
Option or the Option Agreement, but specifically excluding those arising out of
this Agreement.
9. Subsequent Transfers. Each Buyer hereby covenants and agrees that the Shares
will not be offered for sale, sold, delivered after sale, transferred, pledged
or hypothecated in the absence of an effective registration statement for such
Shares under the Act and applicable Blue Sky laws or an opinion of counsel
satisfactory in form and substance to Riviera that registration is not required
under the Act and applicable Blue Sky laws.
10. General Terms.
10.1 Expenses. Except as otherwise specified in this Agreement, all costs
and expenses, including fees and disbursements of counsel, financial advisors
and accountants, incurred in connection with this Agreement and the transactions
contemplated by this Agreement shall be paid by the party incurring such costs
and expenses.
10.2 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by an internationally recognized overnight courier service, by facsimile
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties hereto at the following addresses (or at such other
address for a party as shall be specified in a notice given in accordance with
this Section 10.2):
If to Arrow LP, Arrow Capital, or Arrow Cayman:
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
with a copy to:
Eisner & ▇▇▇▇▇
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
If to SOF or Rivacq:
SOF U.S. Hotel Co Invest Holdings, L.L.C.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
10.3 Public Announcements. No party to this Agreement shall make, or cause
to be made, any press release or public announcement in respect of this
Agreement or the transactions contemplated hereby or otherwise communicate with
any news media without the prior written consent of the other parties, unless
otherwise required by law or applicable stock exchange regulation, and the
parties shall cooperate as to the timing and contents of any such press release,
public announcement or communication.
10.4 Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, among the parties
hereto with respect to the subject matter hereof, including, but not limited to,
the Option Agreement.
10.5 Headings. The headings in this Agreement are for reference purposes
only and do not affect in any way the meaning or interpretation of this
Agreement.
10.6 Assignment. This Agreement may not be assigned by operation of law or
otherwise (a) by Arrow LP, Arrow Capital, or Arrow Cayman, without the express
written consent of Rivacq and SOF (which consent may be granted or withheld in
the sole discretion of Rivacq and SOF) or (b) by SOF or Rivacq without the
express written consent of Arrow LP (which consent may be granted or withheld in
the sole discretion of Arrow LP).
10.7 Amendment. This Agreement may not be amended or modified except (a)
by an instrument in writing signed by, or on behalf of, SOF, Rivacq, Arrow LP,
Arrow Capital, and Arrow Cayman or (b) by a written waiver executed by Arrow,
Arrow Capital, or Arrow Cayman, on the one hand, or by SOF and Rivacq, on the
other hand.
10.8 No Third Party Beneficiaries. Except for the provisions of Section 8,
this Agreement shall be binding upon and inure solely to the benefit of the
parties hereto and their respective successors and permitted assigns and nothing
herein, express or implied, is intended to or shall confer upon any other person
any legal or equitable right, benefit or remedy of any nature whatsoever.
10.9 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that state and without regard to any
applicable conflicts of law principles. All actions or disputes arising out of
or relating to this Agreement shall be heard and determined exclusively in any
New York federal court sitting in the Borough of Manhattan of The City of New
York, provided, however, that if such federal court does not have jurisdiction
over such action or dispute, it shall be heard and determined exclusively in any
New York state court sitting in the Borough of Manhattan of The City of New
York. Consistent with the preceding sentence, the parties hereto hereby (a)
submit to the exclusive jurisdiction of any federal or state court sitting in
the Borough of Manhattan of The City of New York for the purpose of any action
or dispute arising out of or relating to this Agreement brought by any party
hereto and (b) irrevocably waive, and agree not to assert by way of motion,
defense, or otherwise, in any such action or dispute, any claim that it is not
subject personally to the jurisdiction of the above named courts, that its
property is exempt or immune from attachment or execution, that the action or
dispute is brought in an inconvenient forum, that the venue of the action or
dispute is improper, or that this Agreement or the transactions contemplated by
this Agreement may not be enforced in or by any of the above named courts. In
the event of a dispute arising out of this Agreement, the prevailing party shall
be entitled to its reasonable attorney's fees and costs.
10.10 Waiver of Jury Trial. Each of the parties hereto hereby waives to
the fullest extent permitted by applicable law any right it may have to a trial
by jury with respect to any litigation directly or indirectly arising out of,
under, or in connection with this Agreement or the transactions contemplated
hereby. Each of the parties hereto hereby (a) certifies that no representative,
agent or attorney of the other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that it has been induced to enter into
this Agreement and the transactions contemplated by this Agreement, as
applicable, by, among other things, the mutual waivers and certifications in
this Section 10.10.
10.11 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
SOF U.S. HOTEL CO-INVEST HOLDINGS, L.L.C.
By: SOF-VII U.S. Hotel Holdings,
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L.L.C.
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By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
By: I-1/I-2 U.S. Holdings, L.L.C.
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By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
RIVACQ LLC
By: SOF U.S. Hotel Co-Invest Holdings,
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L.L.C.
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By: SOF-VII U.S. Hotel Holdings,
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L.L.C.
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By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
By: I-1/I-2 U.S. Holdings, L.L.C.
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By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
ARROW CAPITAL MANAGEMENT LLC
By:
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Name: ▇▇▇ ▇▇▇▇▇▇
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Title: Managing Member
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ARROW PARTNERS LP
By:
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Name: ▇▇▇ ▇▇▇▇▇▇
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Title: General Partner
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ARROW OFFSHORE LTD
By:
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Name: ▇▇▇ ▇▇▇▇▇▇
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Title: Director
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