STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made as of this 22nd day of October,
1997 by and between CLEC HOLDING CORP. ("CLEC"), a New Jersey corporation, and
SIRCO INTERNATIONAL CORP. ("SIRCO"), a New York corporation.
INTRODUCTION
I. CLEC is engaged in the business of owning and operating a local telephone
company in the state of Florida known as The Other Phone Company, Inc. ("OPC")
and SIRCO is in the business of manufacturing luggage and other sports related
baggage;
II. CLEC and SIRCO are interested in entering into a relationship to allow SIRCO
to include solicitation and promotional inserts in OPC monthly local telephone
bills and to jointly develop and mutually benefit from such other marketing
efforts as are appropriate; and
III. In consideration of and in furtherance of the above described joint
efforts, CLEC and SIRCO have agreed issue shares of common stock in their
respective corporations on the terms and conditions set forth below.
NOW, THEREFORE, for Ten Dollars ($10) and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree as
follows:
1. STOCK ISSUANCE
Simultaneously with the execution hereof, SIRCO will cause to be issued
and delivered a stock certificate representing 375,000 shares of its common
stock (such shares, together with any additional shares that may be issued
pursuant to this Section 1, the "SIRCO Shares") to and in the name of CLEC and
CLEC will cause to be issued and delivered a stock certificate representing
3,000,000 shares of its common stock (the "CLEC Shares") to and in the name of
SIRCO; provided, however, that in the event the closing bid price of a share of
SIRCO common stock, as reported by NASDAQ, is less than $6.00 per share for any
three consecutive trading days in the thirty day period following the date
hereof, SIRCO shall issue to CLEC promptly following such thirty day period
25,000 shares of its common stock, and if the closing bid price of a share of
SIRCO common stock, as so reported, is less than $5.50 per share for any three
consecutive trading days during such thirty day period, SIRCO shall issue to
CLEC promptly following such thirty day period an additional 25,000 shares of
its common stock. The SIRCO Shares and the CLEC Shares will be issued without
registration under the Securities Act of 1933, as amended (the "Act"), based
upon an exemption from registration provided by Regulation D under the Act in
reliance upon the representations of CLEC or SIRCO, as the case may be, set
forth herein; such issuances will be further evidenced by restrictive legends on
the certificates representing the SIRCO Shares or the CLEC Shares and "stop
transfer" instructions to the transfer agents for the SIRCO Shares and the CLEC
Shares. The SIRCO Shares and the CLEC Shares will be "restricted securities"
within the meaning of the Act and the rules and regulations established
thereunder.
2. REPRESENTATIONS.
a. CLEC hereby represents, warrants and covenants as follows:
i. CLEC is a corporation duly organized, validly existing and
in good standing under the laws of the state of New Jersey. CLEC has one
subsidiary, OPC, of which it owns 95% of the issued and outstanding common stock
thereof. Each of CLEC and OPC has full corporate power, right and authority to
own its assets, conduct its business as and where such business is presently
conducted, and CLEC has full corporate power, right and authority to enter into
and perform its obligations under this Agreement without the consent, approval
or authorization of, or obligation to notify, any person, entity or governmental
agency.
ii. The execution, delivery and performance of this Agreement
by CLEC of the transactions contemplated hereby: (i) have been duly authorized
by all necessary corporate actions on the part of CLEC, (ii) will not violate
any provision of the Articles of Incorporation or Bylaws of CLEC, (iii) will not
violate or conflict with or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) or will not result in the
termination or accelerate the performance required by, or result in the creation
of any lien, security interest, charge or encumbrance upon any of CLEC's assets
or capital stock under any term or provision of the Articles of Incorporation or
Bylaws of CLEC or any contract, commitment, understanding, arrangement,
agreement or restriction of any kind or character to which CLEC is a party or by
which CLEC or any of its assets or properties may be bound or affected and (iv)
will not violate or be in conflict with any law, rule, or regulation, or any
judgment, decree, injunction or order, applicable to CLEC. This Agreement is the
legal, valid and binding obligation of CLEC, enforceable against CLEC in
accordance with its terms.
iii. True, correct and complete copies of the Articles of
Incorporation and the Bylaws of CLEC are set forth in Exhibit 2.a.iii.
iv. The authorized capital stock of CLEC consists exclusively
of 100,000,000 shares of common stock, each such share having a par value of
$.001 ("CLEC Common Stock"). Immediately prior to the closing of this
transaction and the issuance of the CLEC Shares to SIRCO, CLEC has 7,545,000
shares of CLEC Common Stock issued and outstanding. Neither the Articles of
Incorporation nor Bylaws of CLEC restrict the issuance of authorized capital
stock, except that the authorization to increase the number of authorized shares
of capital stock and modification of the rights of the Stockholders requires
amendment to the Articles of Incorporation which must be approved by the holders
of a majority of CLEC's Common Stock.
v. Upon issuance to SIRCO, the CLEC Shares will: be duly
authorized, validly issued, fully paid for, and nonassessable; evidence and
represent 3,000,000 shares of CLEC Common Stock; and constitute twenty eight and
four tenths (28.4%) percent of CLEC's issued and outstanding common stock. In
the event of dissolution, liquidation or winding up of CLEC, whether voluntary
or involuntary, the holders of CLEC Common Stock then outstanding are entitled
to share ratably in all assets of CLEC available for distribution after the
payment of CLEC's outstanding obligations. Holders of shares of CLEC Common
Stock are entitled to receive dividends when, as and if declared by CLEC's Board
of Directors out of funds legally available therefor. There are no preemptive
rights, conversion rights, redemption provisions or sinking fund provisions
relating to CLEC Common Stock or inuring to the holders thereof.
vi. Other than the CLEC Common Stock, CLEC is not authorized
to issue any other equity interest in CLEC.
vii. There are no options, warrants, or rights outstanding for
the purchase or acquisition of any shares of the capital stock of CLEC or any
securities or rights outstanding convertible or exchangeable into any shares of
such capital stock.
viii. The CLEC Shares will be issued in the name of SIRCO or
its designee. Upon issuance by CLEC of the CLEC Shares to SIRCO as provided
herein, SIRCO will acquire from CLEC good and marketable title to the CLEC
Shares, free and clear or any lien, encumbrance, security interest, claim,
pledge, option, restriction, charge or equity of any nature whatsoever, except
for the restrictions on transfer contemplated by Section 1 of this Agreement.
ix. Each of CLEC and OPC has good and marketable title to all
of the assets, business and properties of CLEC or OPC, as the case may be, that
are used in or useful to the operations of the business as same shall exist on
the date of this Agreement.
x. In connection with conducting its business, each of CLEC
and OPC is in compliance, to the best of its knowledge, with all applicable
laws, rules and regulations and has not received notice of any alleged
violations of such laws, rules or regulations with respect to its business which
have not been corrected or otherwise resolved.
xi. There is no material fact relevant to the business of CLEC
or OPC or its future prospects that have not been set forth herein or otherwise
disclosed to SIRCO, the existence of which would have a material adverse affect
on CLEC's or OPC's business, financial condition or results of operations or
could result in liability (other than SIRCO's obligations hereunder) to SIRCO.
None of the information included herein or other documents furnished or to be
furnished by CLEC or any of its representatives contain any untrue statement of
a material nature or is misleading in any material respect or omits to state a
material fact necessary in order to make any of the statements herein or therein
not materially misleading. Except as otherwise provided for in this Agreement,
SIRCO acknowledges that CLEC has not made any representations or warranties as
the value of CLEC.
xii. CLEC understands that none of the SIRCO Shares are
registered under the Act, any state securities laws or any foreign securities
laws. CLEC understands that the offering and sale of the SIRCO Shares is
intended to be exempt from registration under the Act by virtue of Section 4(2)
and/or Section 4(6) of the Act and the provisions of Regulation D promulgated
thereunder, based, in part, upon the representations, warranties and agreements
of CLEC contained in this Agreement.
xiii. CLEC has received copies of all SIRCO's Annual Report on
Form 10-K for the fiscal year ended November 30, 1996, SIRCO's Quarterly Reports
on Form 10-Q for the fiscal quarters ended February 28, May 30, and August 31,
1997 and all other documents (collectively, the "SIRCO Disclosure Documents")
requested by CLEC, has carefully reviewed the SIRCO Disclosure Document in their
entirety, and CLEC has had access to the same kind of information with respect
to SIRCO that would be available in a registration statement filed by SIRCO
under the Act.
xiv. CLEC has taken no action which would give rise to any
claim by any person for brokerage commissions, finders' fees or the like
relating to this Agreement or the transactions contemplated hereby.
xv. CLEC is acquiring the SIRCO Shares solely for its own
account for investment and not with a view to resale or distribution.
xvi. CLEC meets the requirements of at least one of the
suitability standards for an "accredited investor" as defined in the Act.
xvii. CLEC acknowledges that neither SIRCO nor any person
acting on SIRCO's behalf has made any representations to CLEC except as
contained in the Disclosure Documents or otherwise confirmed in writing by the
Chief Executive Officer of SIRCO; and in making its decision to purchase the
SIRCO Shares, CLEC has not relied on any representations or information other
than those which CLEC has independently investigated and verified to its
satisfaction.
xviii. CLEC shall furnish to SIRCO on or before December 31,
1997 audited financial statements for the year ended October 31, 1997 prepared
in accordance with generally accepted accounting principles and shall cooperate
with SIRCO in connection with its filing of a current report on Form 8-K and
related materials as required by the Securities Exchange Act of 1934, as
amended, reporting the transactions contemplated by this Agreement.
b. SIRCO hereby represents, warrants and covenants as follows:
i. SIRCO is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York. Except as disclosed in
the SIRCO Disclosure Documents, SIRCO has no subsidiaries. SIRCO has full
corporate power, right and authority to own its assets, conduct its business as
and where such business is presently conducted, and SIRCO has full corporate
power, right and authority to enter into and perform its obligations under this
Agreement without the consent, approval or authorization of, or obligation to
notify, any person, entity or governmental agency.
ii. The execution, delivery and performance of this Agreement
by SIRCO of the transactions contemplated hereby: (A) have been duly authorized
by all necessary corporate actions on the part of SIRCO, (B) will not violate
any provision of the Certificate of Incorporation or Bylaws of SIRCO, (C) will
not violate or conflict with or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) or will not result
in the termination or accelerate the performance required by, or result in the
creation of any lien, security interest, charge or encumbrance upon any of
SIRCO's assets or capital stock under any term or provision of the Certificate
of Incorporation or Bylaws of SIRCO or any contract, commitment, understanding,
arrangement, agreement or restriction of any kind or character to which SIRCO is
a party or by which SIRCO or any of its assets or properties may be bound or
affected and (iv) will not violate or be in conflict with any law, rule, or
regulation, or any judgment, decree, injunction or order, applicable to SIRCO.
This Agreement is the legal, valid and binding obligation of SIRCO, enforceable
against SIRCO in accordance with its terms.
iii. True, correct and complete copies of the Certificate of
Incorporation and the Bylaws of SIRCO are set forth in Exhibit 2.b.iii.
iv. The authorized capital stock of SIRCO consists exclusively
of 10,000,000 shares of common stock, each such share having a par value of $.10
("SIRCO Common Stock") and 1,000,000 shares of preferred stock, each such share
having a par value of $.10. Immediately prior to the closing of this transaction
and the issuance of SIRCO Shares to CLEC, SIRCO has 3,875,400 shares of SIRCO
Common Stock issued and outstanding. Neither the Certificate of Incorporation
nor Bylaws of SIRCO restrict the issuance of authorized capital stock, except
that the authorization to increase the number of authorized shares of capital
stock and modification of the rights of the stockholders requires amendment to
the Certificate of Incorporation which must be approved by the holders of a
majority of SIRCO's Common Stock.
v. Upon issuance to CLEC, the SIRCO Shares will: be duly
authorized, validly issued, fully paid for, and nonassessable; evidence and
represent 375,000 shares of SIRCO Common Stock; and constitute eight and eight
tenths (8.8%) percent of SIRCO's issued and outstanding common stock (assuming
no issuances of additional shares pursuant to the proviso in Section 1,
hereinabove). In the event of dissolution, liquidation or winding up of SIRCO,
whether voluntary or involuntary, the holders of SIRCO Common Stock then
outstanding are entitled to share ratably in all assets of SIRCO available for
distribution after the payment of SIRCO's outstanding obligations. Holders of
shares of SIRCO Common Stock are entitled to receive dividends when, as and if
declared by SIRCO's Board of Directors out of funds legally available therefor.
There are no preemptive rights, conversion rights, redemption provisions or
sinking fund provisions relating to SIRCO Common Stock or inuring to the holders
thereof.
vi. Other than as disclosed in the SIRCO Disclosure Documents,
SIRCO is not authorized to issue any other equity interest in SIRCO.
vii. Other than as disclosed in the SIRCO Disclosure
Documents, there are no options, warrants, or rights outstanding for the
purchase or acquisition of any shares of the capital stock of SIRCO or any
securities or rights outstanding convertible or exchangeable into any shares of
such capital stock.
viii. The SIRCO Shares will be issued in the name of CLEC.
Upon issuance by SIRCO of the SIRCO Shares to CLEC as provided herein, CLEC will
acquire from SIRCO good and marketable title to the SIRCO Shares, free and clear
or any lien, encumbrance, security interest, claim, pledge, option, restriction,
charge or equity of any nature whatsoever, except for the restrictions on
transfer contemplated by Section 1 of this Agreement.
ix. Other than the as disclosed in the SIRCO Disclosure
Documents, SIRCO has good and marketable title to all of the assets, business
and properties of SIRCO that are used in or useful to the operations of its
business as same shall exist on the date of this Agreement.
x. In connection with conducting its business, SIRCO is in
compliance, to the best of its knowledge, with all applicable laws, rules and
regulations and has not received notice of any alleged violations of such laws,
rules or regulations with respect to its business which have not been corrected
or otherwise resolved.
xi. There is no material fact relevant to the business of
SIRCO or its future prospects that have not been set forth herein or otherwise
disclosed to CLEC, the existence of which would have a material adverse affect
on SIRCO's business or could result in liability (other than CLEC's obligations
hereunder) to CLEC. None of the information included herein or in the SIRCO
Disclosure Documents, taken as a whole, contain any untrue statement of a
material nature or is misleading in any material respect or omits to state a
material fact necessary in order to make any of the statements herein or therein
not materially misleading. Except as otherwise provided for in this Agreement,
CLEC acknowledges that SIRCO has not made any representations or warranties as
the value of SIRCO.
xii. SIRCO understands that none of the CLEC Shares are
registered under the Act, any state securities laws or any foreign securities
laws. SIRCO understands that the offering and sale of the CLEC Shares is
intended to be exempt from registration under the Act by virtue of Section 4(2)
and/or Section 4(6) of the Act and the provisions of Regulation D promulgated
thereunder, based, in part, upon the representations, warranties and agreements
of SIRCO contained in this Agreement.
xiii. SIRCO has received copies of CLEC's Private Placement
Memorandum dated August 25, 1997 and all other documents (collectively, the
"CLEC Disclosure Documents") requested by SIRCO, has carefully reviewed the CLEC
Disclosure Document in their entirety, and SIRCO has had access to the same kind
of information with respect to CLEC that would be available in a registration
statement filed by CLEC under the Act.
xiv. SIRCO has taken no action which would give rise to any
claim by any person for brokerage commissions, finders' fees or the like
relating to this Agreement or the transactions contemplated hereby.
xv. SIRCO is acquiring the CLEC Shares solely for its own
account for investment and not with a view to resale or distribution.
xvi. SIRCO meets the requirements of at least one of the
suitability standards for an "accredited investor" as defined in the Act.
xvii. SIRCO acknowledges that neither CLEC nor any person
acting on CLEC's behalf has made any representations to SIRCO except as
contained in the Disclosure Documents or otherwise confirmed in writing by the
Chief Executive Officer of CLEC; and in making its decision to purchase the CLEC
Shares, SIRCO has not relied on any representations or information other than
those which SIRCO has independently investigated and verified to its
satisfaction.
3. BOARD REPRESENTATION.
So long as SIRCO beneficially owns at least 1,000,000 of CLEC Common
Stock, SIRCO shall be permitted to designate one candidate for election to the
Board of Directors of CLEC, which candidate shall be supported for election by
the management and Board of Directors of CLEC. Such designee shall be entitled
to reimbursement for all out-of-pocket expenses incurred in attending meetings
of the Board of Directors of CLEC or any subsidiary thereof or any committee
thereof, including, but not limited to, food, lodging and transportation costs.
The designee shall have the right to notice of and the right to attend all
meetings or the Board of Directors of CLEC and of each subsidiary thereof and
all committees thereof. Such designee shall also serve on CLEC's audit and
compensation committees. To the extent permitted by the laws of the jurisdiction
of incorporation of CLEC and the Federal securities laws, CLEC agrees to
indemnify SIRCO and its designee as a director of CLEC to the fullest extent
permitted by law. In the event CLEC maintains liability insurance coverage
affording coverage for the acts of its officers and directors, CLEC agrees to
include SIRCO and its designee as an insured under such policy.
4. REGISTRATION RIGHTS.
Concurrently with the execution and delivery of this Agreement, the
parties hereto shall execute and deliver a registration rights agreement in the
form annexed as Exhibit A hereto.
5. GENERAL PROVISIONS.
a. All of the terms and provision of this Agreement, whether so
expressed or not shall be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective personal representatives, legal
representatives, heirs, successors and permitted assigns.
b. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
c. The obligations of the parties hereunder shall not be modified or
waived except by an instrument in writing signed by the party against whom any
such modification or waiver is sought.
d. This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York without regard to its conflicts of
laws principles.
e. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, or delivered against receipt to the party to whom it is to be
given, in either case, at the address set forth on the signature page hereof or
at such other address as either party shall have furnished in writing to the
other party in accordance with the provisions of this section.
f. The representations and warranties made in this Agreement shall
survive the execution and delivery hereof and the consummation of the
transactions contemplated hereby.
g. Each provision of this Agreement shall be considered separable and
if for any reason any provision or provisions hereof shall be determined to be
invalid or contrary to applicable law, such invalidity shall not impair the
operation of or affect the remaining portions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year set forth above.
CLEC HOLDING CORP. SIRCO INTERNATIONAL CORP.
3427 NW 55th Street 24 Richmond Hill Avenue
Ft. Lauderdale, FL 33309 Stamford, CT 06901
By: ___________________ By: ______________________
Name: ___________________ Name: ______________________
Title: ___________________ Title: ______________________
AMENDMENT
This Amendment to that certain Stock Purchase Agreement dated as of
October 22, 1997 by and between CLEC HOLDING CORP. ("CLEC"), a New Jersey
corporation, and SIRCO INTERNATIONAL CORP. ("SIRCO"), a New York corporation is
made this 22nd day of October, 1997.
INTRODUCTION
I. CLEC and SIRCO entered into a Stock Purchase Agreement to reflect a
relationship which would allow SIRCO to include solicitation and promotional
inserts in The Other Phone Company, Inc. monthly local telephone bills and to
jointly develop and mutually benefit from such other marketing efforts as are
appropriate.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree to amend such Stock Purchase
Agreement as follows:
1. COOPERATION The parties hereto agree that in the event either party seeks to
engage in a subsequent transaction with respect to either of the CLEC Shares or
the SIRCO Shares, each shall cooperate with the other and, to the extent
permitted by law, execute such documents and provide such opinions as are
required to effectuate the transaction.
2. All other terms and conditions shall remain the same.
IN WITNESS WHEREOF, the parties have executed this Amendment to the
Stock Purchase Agreement on the date and year set forth above.
CLEC HOLDING CORP. SIRCO INTERNATIONAL CORP.
3427 NW 55th Street 24 Richmond Hill Avenue
Ft. Lauderdale, FL 33309 Stamford, CT 06901
By: ___________________ By: ______________________
Name: ___________________ Name: ______________________
Title: ___________________ Title: ______________________