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EXHIBIT 2.1
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated
as of October 1, 1996, is entered into among CIRCO CRAFT HOLDING COMPANY, a
Delaware corporation (the "Company"), and the Purchasers listed on the
signature pages hereof.
In consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1 Commitments to Purchase. The Company agrees to sell and,
subject to the terms and conditions set forth herein and in reliance on the
representations and warranties of the Company contained herein, each of the
Purchasers agrees, severally but not jointly, to purchase the number of shares
of Common Stock, par value $.01 per share (the "Common Stock"), or Class A
Common Stock, par value $.01 per share (the "Class A Common Stock" and together
with the Common Stock, the "Securities"), of the Company set forth below such
Purchaser's name on Exhibit A hereto, for the cash purchase price set forth
below such Purchaser's name on Exhibit A hereto.
1.2 Closing.
(a) The purchases and sales of the Securities will take
place at a closing (the "Closing") at the offices of Weil, Gotshal & Xxxxxx,
000 Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, at 9:00 a.m., Dallas time,
on October 1, 1996, or on such other date as is specified by the Company to the
Purchasers in writing at least one (1) business day prior thereto.
(b) At the Closing, the Company shall deliver to each
Purchaser, against payment of the purchase price therefor, certificates for the
shares of Common Stock or Class A Common Stock purchased by such Purchaser.
Each Security so purchased shall be registered in the name of such Purchaser or
such other Person or Persons (each as hereinafter defined) as such Purchaser
may designate.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
To induce the Purchasers to purchase the Securities as herein
provided, the Company makes the following representations and warranties to the
Purchasers, each and all of which shall be true and correct as of the date of
the execution and delivery of this Agreement and shall survive the execution
and delivery of this Agreement:
2.1 Corporate Existence. The Company: (a) is duly organized and
validly existing under the laws of the jurisdiction of its organization; (b)
has all requisite corporate power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as now being or as proposed to be conducted and to consummate the
transactions contemplated by this Agreement; and (c) is qualified to do
business in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure to so qualify would
have a material adverse effect on the results of operations, business or
financial condition of the Company and its subsidiaries taken as a whole.
2.2 Authorization. The Company has all requisite corporate power
and authority to enter into this Agreement, issue the Securities and perform
its obligations hereunder. The execution, delivery and performance of this
Agreement and the Stockholders Agreement (as hereinafter defined) have been
duly authorized by all necessary corporate action on the part of the Company,
and this Agreement and the Stockholders Agreement have been duly executed and
delivered by the Company. This Agreement and the Stockholders Agreement
constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms subject, as to
enforceability, to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other laws of general applicability affecting
the rights of creditors and to general principles of equity.
2.3 No Conflict. The execution, delivery and performance by the
Company of this Agreement and the Stockholders Agreement do not and will not
(a) violate or contravene or be in conflict with (i) any provision of the
Certificate of Incorporation or By-Laws of the Company, (ii) any provision of
any law, rule or regulation applicable to the Company, (iii) any order,
judgment or decree of any court or other agency, (b) violate, result in a
breach of or constitute a default under any term of any mortgage, indenture,
contract or agreement to which the Company is a party or by which the Company
or any property of the Company is bound; or
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(c) result in the creation of any tax, charge, claim, lien, security interest
or other encumbrance of any kind whatsoever on any of the properties or assets
of the Company.
2.4 Capitalization. The duly authorized capital stock of the
Company consists of (i) 90,000,000 shares of Common Stock, of which 67,949,754
shares will be issued and outstanding immediately after the consummation of the
transactions contemplated by this Agreement, and (ii) 10,000,000 shares of
Class A Common Stock, of which 7,111,111 shares will be issued and outstanding
immediately after the consummation of the transactions contemplated by this
Agreement. Except for the Class A Common Stock and the 2,315,066 IRR Stock
Options (as defined), there are no options, warrants, calls, subscriptions,
conversion or other rights, agreements or commitments obligating the Company to
issue any additional shares of capital stock of the Company or any other
securities convertible into, exchangeable for or evidencing the right to
subscribe for any shares of capital stock of the Company. Except as set forth
in the Stockholders Agreement, neither the Company nor any of its subsidiaries
has entered into any agreement to register any capital stock of the Company
under the Securities Act of 1933, as amended (the "Securities Act"). When
issued in accordance with the provisions of this Agreement, the Securities will
be duly authorized, validly issued, fully paid and non-assessable and will be
free and clear of any and all taxes, charges, claims, liens and security
interests or other encumbrances of any kind whatsoever.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
3.1 Private Placement.
(a) Each Purchaser (as to itself only) understands and
acknowledges that:
(i) the offering and sale of the Securities is
intended to be exempt from registration under the Securities Act of
1933, as amended, by virtue of the provisions of either Section 4(2)
of the Securities Act or Rule 506 of Regulation D ("Regulation D")
promulgated under the Securities Act by the Securities and Exchange
Commission (the "SEC");
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(ii) the offering itself will be reported by the
Company to the SEC to the extent required by Regulation D and to
various state securities or blue sky commissioners to the extent
required by applicable state law; and
(iii) there is no existing public or other market for
the Securities and there can be no assurance that any Purchaser will
be able to sell or dispose of such Purchaser's Securities.
(b) Each Purchaser (as to itself only) represents and
warrants to the Company that:
(i) the Securities to be acquired by it pursuant to
this Agreement are being acquired for its own account, not as a
nominee or agent for any other Person and without a view to the
distribution of such Securities or any interest therein in violation
of the Securities Act; and
(ii) such Purchaser is an "accredited investor"
within the meaning of Rule 501(a) under Regulation D, and has such
knowledge and experience in financial and business matters so as to be
capable of evaluating the merits and risks of its investment in the
Securities, and such Purchaser is capable of bearing the economic
risks of such investment and is able to bear the complete loss of its
investment in the Securities.
(c) Each Purchaser further represents that the execution,
delivery, and performance of this Agreement is within such Purchaser's powers
(corporate or otherwise) and has been duly authorized by all requisite action
(corporate or otherwise).
(d) Each Purchaser acknowledges that the Securities have
not been registered under the Securities Act and understands that the
Securities must be held indefinitely unless they are subsequently registered
under the Securities Act or such sale is permitted pursuant to an available
exemption from such registration requirement.
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ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions to Obligation of the Purchasers. Notwithstanding
any other provision of this Agreement and without affecting in any manner the
rights of the Purchasers hereunder, the Company shall have no rights under this
Agreement (but shall have all applicable obligations hereunder), and the
Purchasers shall not be obligated to purchase the Securities hereunder, unless
and until each of the following conditions precedent shall have been fulfilled
or (with the consent of each Purchaser) waived:
(a) The Securities being purchased by each Purchaser,
shall have been delivered duly executed to the Purchasers;
(b) Simultaneously with the purchase of the Securities,
HMTF Canada Acquisition Inc., a Quebec corporation and a subsidiary of the
Company ("Sub"), shall have entered into a Credit Agreement (the "Credit
Agreement"), among the Company, The Chase Manhattan Bank of Canada and Chemical
Bank of Canada which will provide the Company a credit facility in an aggregate
amount up to $110 million;
(c) Simultaneously with the purchase of the Securities,
Sub shall have acquired at least 66-2/3% of the common shares of Circo Craft
Co. Inc., a Quebec corporation; and
(d) The representations and warranties of the Company
contained herein shall be true and correct in all material respects on and as
of the Closing Date as though made on and as of such date.
ARTICLE V
MANAGEMENT OF THE COMPANY
Concurrently with the execution hereof, the Company and the Purchasers
are entering into a Stockholders Agreement in the form attached hereto as
Exhibit B (the "Stockholder Agreement"). Accordingly, the certificates
evidencing the Securities will contain certain legended information set forth
in the Stockholder Agreement.
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ARTICLE VI
MISCELLANEOUS
6.1 Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if
made by hand delivery, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, addressed as follows (or at such other
address as may be substituted by notice given as herein provided):
If to the Company:
Circo Craft Holding Company
c/o Mills & Partners
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Copies to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
If to any Purchaser, at its address listed on the signature pages
hereof or such other address as any Purchaser may provide by notice to
the Company.
Any notice or communication hereunder shall be deemed to have been
given or made as of the date so delivered, if personally delivered; when
receipt is acknowledged, if telecopied; and three calendar days after mailing
if sent by registered or certified mail (except that a notice of change of
address shall not be deemed to have been given until actually received by the
addressee).
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Failure to mail a notice or communication to a Purchaser or any defect
in it shall not affect its sufficiency with respect to other Purchasers. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
6.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
6.3 Successors and Assigns. This Agreement shall be binding upon
the Company, each Purchaser and each of their respective successors and
assigns.
6.4 Duplicate Originals. All parties may sign any number of
copies of this Agreement. Each signed copy shall be an original, but all of
them together shall represent the same agreement.
6.5 Severability. In case any provision in this Agreement shall
be held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and the remaining provisions shall not in any way be affected or
impaired thereby
6.6 No Waivers; Amendments.
(a) No failure or delay on the part of the Company or any
Purchaser in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy at law or in equity or otherwise.
(b) Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Company or the party against whom such amendment is operative.
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
CIRCO CRAFT HOLDING COMPANY
By: /s/
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
Name of Purchaser:
HICKS, MUSE, XXXX & XXXXX EQUITY FUND
III, L.P.
By: Xxxxx, Muse GP Partners III,
L.P., its General Partner
By: Xxxxx, Muse Fund III
Incorporated, its
General Partner
By: /s/
Name: Xxxxxxxx X. Xxxxxx, Xx.
Title: Managing Director and
Principal,
Executive Vice President
Address of Purchaser:
c/o Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
Name of Purchaser:
HM3 COINVESTORS, L.P.
By: Xxxxx, Xxxx XX Partners III,
L.P., its General Partner
By: Xxxxx, Muse Fund III
Incorporated, its
General Partner
By: /s/
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Managing Director and Principal
and Executive Vice President
----------------------------------
Address of Purchaser:
c/o Hicks, Muse, Xxxx & Xxxxx
Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx, Xx.
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
Name of Purchaser:
/s/
----------------------------------------
XXXXX X. XXXXX
Address of Purchaser:
c/o Mills & Partners, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
Name of Purchaser:
/s/
----------------------------------------
XXXXX X. XXXXXXXX
Address of Purchaser:
c/o Mills & Partners, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
Name of Purchaser:
/s/
----------------------------------------
XXXXX X. XXXXX
Address of Purchaser:
c/o Mills & Partners, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
Name of Purchaser:
/s/
----------------------------------------
XXXXX X. XXXXXXX
Address of Purchaser:
c/o Mills & Partners, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
Name of Purchaser:
/s/
----------------------------------------
W. XXXXXX XxXXXX
Address of Purchaser:
c/o Mills & Partners, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
Name of Purchaser:
/s/
----------------------------------------
XXXXXX X. XXXXX
Address of Purchaser:
c/o Mills & Partners, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
Name of Purchaser:
/s/
----------------------------------------
X X XXXX
Address of Purchaser:
c/o Mills & Partners, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
Name of Purchaser:
/s/
----------------------------------------
XXXX X. XXXXXX
Address of Purchaser:
c/o Mills & Partners, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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SIGNATURES TO AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the date first written above.
Name of Purchaser:
/s/
----------------------------------------
XXXXXXX X. XXXXXX
Address of Purchaser:
c/o Mills & Partners, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
with a copy to:
Weil, Gotshal & Xxxxxx
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx
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Exhibit A
Purchaser: Hicks, Muse, Xxxx & Xxxxx Equity Fund III, L.P.
Number of Shares of Common Stock to be Purchased: 65,588,053
Purchase Price: $65,588,053.00
Purchaser: Xxxxx, Muse & Co. Partners, L.P.
Number of Shares of Common Stock to be Purchased: 2,361,701
Purchase Price: $2,361,701.00
Purchaser: Xxxxx X. Xxxxx
Number of Shares of Class A Common Stock
to be Purchased: 3,274,667
Purchase Price: $32,746.67
Purchaser: Xxxxx X. Xxxxxxxx
Number of Shares of Class A Common Stock
to be Purchased: 1,991,111
Purchase Price: $19,911.11
Purchaser: Xxxxx X. Xxxxx
Number of Shares of Class A Common Stock
to be Purchased: 426,667
Purchase Price: $4,266.67
Purchaser: Xxxxx X. Xxxxxxx
Number of Shares of Class A Common Stock
to be Purchased: 213,333
Purchase Price: $2,133.33
Purchaser: W. Xxxxxx XxXxxx
Number of Shares of Class A Common Stock
to be Purchased: 426,667
Purchase Price: $4,266.67
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Purchaser: Xxxxxx X. Xxxxx
Number of Shares of Class A Common Stock
to be Purchased: 288,000
Purchase Price: $2,880.00
Purchaser: X.X. Xxxx
Number of Shares of Class A Common Stock
to be Purchased: 213,333
Purchase Price: 2,133.33
Purchaser: Xxxx X. Xxxxxx
Number of Shares of Class A Common Stock
to be Purchased: 64,000
Purchase Price: $640.00
Purchaser: Xxxxxxx X. Xxxxxx
Number of Shares of Class A Common Stock
to be Purchased: 213,333
Purchase Price: $2,133.33
