EXHIBIT 4(j)
November 21, 1996
Mr. Everett T. Keech
Chief Executive Officer
One Tower Bridge, Suite 501
West Conshohocken, PA 19428
RE: THE SINKLER CORPORATION - PICO PRODUCTS, INC.
Dear Everett:
The purpose of this letter is to confirm our agreement with respect to
the issuance and sale by Pico Products, Inc., a New York corporation
(hereinafter "Pico"), of 1,000 Series A Redeemable Preferred Shares (the
"Stock") to The Sinkler Corporation, a Delaware Corporation ("Sinkler"), and I
am writing you as Vice-President of Sinkler pursuant to the authority of its
Board of Directors, evidence of which will be delivered at or prior to Closing
(as hereinafter defined). A substantial reason for the willingness of Sinkler
to make this investment in the Stock of Pico is the willingness of Allied
Capital to make an equity/debt investment in Pico (the "Allied Transaction") on
substantially the terms and in the amounts set forth in a certain letter dated
October 9, 1996 (the "Allied Letter") from Allied to you, and, therefore, the
affirmative covenants and undertakings that Sinkler will require of Pico are
intended to be equivalent to those provided to Allied by Pico, thereby reducing
the administrative burden of the transaction to Pico.
Subject to the foregoing and the mutual covenants herein contained and
for and in consideration of their mutual obligations herein set forth, Sinkler
and Pico, intending to be legally bound, agree as follows:
1. THE PURCHASE. Sinkler agrees at Closing to deliver to Pico the
sum of one million dollars ($1,000,000.00) in the form of a cashier's check made
payable to Pico's order or wire transfer to an account designated by Pico. Pico
at Closing will deliver to Sinkler one or more certificates representing in the
aggregate 1,000 shares of the Stock issued in the name of Sinkler. Sinkler
further agrees to deliver to Pico at Closing the sum of ten dollars ($10.00) in
the form of a check payable to Pico's order or wire transfer to an account
designated by Pico as consideration for the purchase by Sinkler of warrants (the
"Warrants") to purchase 155,863 Pico common shares from Pico together with
certain contingent warrants to purchase Pico common shares under certain
circumstances. The designations, powers, preferences and rights, and the
qualifications, limitations and restrictions of the Stock are set forth in the
Designation Statement attached to this letter as Exhibit "A" and are generally
described below in this letter. It is
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understood that in the event there shall be any inconsistency between the
Designation Statement and this letter, the provisions of the Designation
Statement shall be controlling.
(a) The Stock will impose on Pico the obligation to declare
quarterly dividends, payable at a rate of 12 percent per annum, with the option
of Sinkler to receive Pico common shares (the "Dividend Shares") in lieu of the
payment of any cash dividend otherwise payable, upon written notification by
Sinkler to Pico thirty days prior to the scheduled dividend payment date. If
Sinkler exercises the option to take Dividend Shares, the number of such
Dividend Shares shall be determined in the manner set forth in the Designation
Statement. All unpaid cash dividends shall be cumulative. In the event that
Pico exercises its option to delay payment of a quarterly dividend (as provided
in the Designation Statement), Pico will pay Sinkler interest on the amount of
the delayed dividend payment at an annual rate equal to First Union Bank's prime
rate as in effect from time to time during the delay in payment. The Stock will
be redeemable according to the following schedule:
$100,000.00 due at the end of the 48th month following Closing;
$100,000.00 due at the end of the 60th month following Closing;
$200,000.00 due at the end of the 72nd month following Closing; and
$600,000.00 due at the end of the 84th month following Closing.
Notwithstanding the foregoing, Pico may call all or any portion of the Stock for
redemption at any time without penalty. The Stock will have preference in
liquidation or in any bankruptcy or reorganization proceeding ahead of the
common stock. Sinkler acknowledges that Pico will not make any payment of any
dividend or any amount on account of a redemption of the Stock during any period
of time when there shall exist an event of default under the Allied Agreement,
as defined in Section 3(a).
(b) The Warrants will be separate and detachable, and
exercisable for a period of six (6) years after Closing or 36 months from the
final payment on the subordinated debentures issued by Pico pursuant to the
Allied Transaction, whichever is later. The exercise price will be $1.81 per
share. The Warrants will give Sinkler the same registration rights, rights to
obtain additional warrants and anti-dilution protection as given to Allied under
the Allied Transaction, provided that Sinkler shall only exercise its demand
registration rights in conjunction with Allied.
2. CONDITION PRECEDENT TO SINKLER'S OBLIGATIONS. Sinkler's
obligations under this Agreement shall depend and be conditioned upon Pico's
completion of the Allied Transaction on substantially the terms and conditions
set forth in the Allied Letter.
3. REPRESENTATIONS AND WARRANTIES.
(a) Pico hereby makes the same representations and warranties to
and for the benefit of Sinkler as are contained in Article III of the Investment
Agreement, dated
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today, between Allied Capital International Corporation and certain affiliates,
as the investors, and Pico and certain affiliates (the "Allied Agreement"). In
addition Pico represents and warrants to Sinkler that (i) this agreement and the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Pico; and (ii) this Agreement and the Warrants
constitute the valid and binding obligations of Pico, enforceable in accordance
with their respective terms.
(b) Sinkler hereby represents and warrants to Pico that it (i)
is acquiring the Stock and the Warrants (and the common shares to be received
upon exercise of the Warrants, hereinafter referred to as the "Warrant Shares")
for its own account for the purpose of investment and not with a view to or for
sale in connection with any distribution thereof; (ii) understands that the
Stock, the Warrants, and the Warrant Shares have not been registered under the
Securities Act of 1933 (the "Act"), as amended, by reason of their issuance in a
transaction exempt from the registration requirements of the Act pursuant to
Section 4(2) thereof and may not be offered or sold except pursuant to an
effective registration statement or an available exemption from the registration
requirements under the Act; and (iii) is an "accredited investor" as defined in
Regulation D as promulgated under the Act. Sinkler agrees that certificates
representing the Stock, the Warrants, and the Warrant Shares will bear
restrictive legends to the effect of clause (ii) of the preceding sentence and
that Pico may require an opinion of counsel, in form and substance reasonably
satisfactory to Pico, to the effect that any proposed transfer will not result
in any violation of the Act and the rules and regulations thereunder.
4. AFFIRMATIVE COVENANTS. As long as the Stock has not been
redeemed, Pico will make the following covenants:
(a) PROJECTIONS. Pico agrees to supply the same projections to
Sinkler it has agreed to supply under section 4.05 of the Allied Agreement.
(b) MATERIAL FILINGS; MATERIAL LITIGATIONS; DEFAULT NOTICES.
Pico agrees to supply Sinkler with the same information it has agreed to supply
under Sections 4.06, 4.07 and 4.08 of the Allied Agreement.
5. NEGATIVE COVENANTS.
(a) As long as any of the Stock remains unredeemed, Pico agrees
to the same negative covenants for the benefit of Sinkler that it has provided
under sections 5.01, 5.02 and 5.05 of the Allied Agreement.
(b) As long as any of the Stock remains unredeemed and Sinkler
has any unexercised Warrants, Pico agrees not to make any redemptions of common
shares or dividend payments on the common shares unless Sinkler is given an
opportunity to exercise its Warrants.
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(c) As long as any of the Stock remains unredeemed, Pico agrees
not to issue any preferred shares senior to, or of equal parity with, the Stock,
or to make any cash payment of dividends on any preferred shares which are
junior to the Stock if the amount of such cash dividends paid in any fiscal year
is greater than the Equivalent Rate multiplied by the purchase price of such
junior preferred shares. The term "Equivalent Rate" shall mean the prime rate
of First Union Bank on the date of issuance of any such junior preferred shares
plus 3.5%.
6. DEFAULT.
(a) The following shall constitute events of default:
(i) Failure to declare or pay any dividend on the Stock
as required by this Agreement or the provisions of the Designation Statement.
(ii) Breach of any affirmative or negative covenant; Pico
will have 10 days to cure any violation of a financial covenant after notice of
default from Sinkler and will have 30 days to cure any violation of a
non-financial covenant after notice of default from Sinkler. Pico agrees to
provide Sinkler with any notice of default which it provides under the Allied
Agreement.
(iii) Any representation or warranty made by Pico pursuant
to Section 3(a) shall prove to have been untrue when made in any material
respect.
(iv) The occurrence of an event described in Section 7.04,
7.05, 7.06, or 7.07 of the Allied Agreement.
(b) In addition to all other remedies it may have at law or in
equity in the event of a Default as set forth above, which is not cured as
herein provided, Sinkler shall have the unqualified right to demand the
immediate redemption of the Stock, with which demand Pico agrees to immediately
comply.
7. LEGAL OPINIONS.
(a) Pico agrees to supply Sinkler with an opinion of the
counsel, Messrs. Saul, Ewing, Remick and Saul, to the effect that:
(i) Pico is a corporation duly incorporated and validly
existing under the laws of the State of New York.
(ii) The transaction set forth in this letter agreement
and the execution of this Agreement have been duly authorized by the Board of
Directors of Pico and do not violate any law or statute, by-law, agreement,
covenant or understanding by which Pico is bound.
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(b) Sinkler agrees to supply Pico with the opinion of its
counsel, Messrs. Montgomery, McCracken, Walker & Rhoads, to the effect that:
(i) The transaction set forth in this letter agreement
and the execution of this letter agreement have been duly authorized by the
Board of Directors of Sinkler; and the borrowing necessary to fund this
transaction has likewise been duly authorized by the Board of Directors of
Sinkler.
8. CLOSING. Closing hereunder will take place simultaneously with
Pico's closing of the Allied Transaction and simultaneously with the execution
and delivery of this Agreement, at the offices of Messrs. Saul, Ewing, Remick &
Saul, 3800 Centre Square West, Philadelphia, Pennsylvania.
Sincerely,
By: /s/ Howard Lewis
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Vice President
Accepted and Agreed to:
PICO PRODUCTS, INC.
By: /S/ Everett Keech
-------------------------------
Everett T. Keech,
Chief Executive Officer
Date: November 21, 1996
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EXHIBIT A
PICO PRODUCTS, INC.
RESOLUTION OF THE BOARD OF DIRECTORS
APPROVING
THE DESIGNATION STATEMENT
RELATING TO SERIES A REDEEMABLE PREFERRED SHARES
WHEREAS, the Certificate of Incorporation of the Corporation authorizes the
Corporation to issue a total of 500,000 series preferred shares, par value $.01
per share ("Preferred Shares"), which may be divided into one or more series as
the Board of Directors may determine;
WHEREAS, the Certificate of Incorporation of the Corporation expressly
vests in the Board of Directors the authority to fix and determine the
designations, powers, preferences, and rights, and the qualifications,
limitations and restrictions thereof, of the Preferred Shares;
WHEREAS, the Board of Directors has not designated any series of the
Corporation's Preferred Shares, and Preferred Shares have been issued by the
Corporation;
WHEREAS, it is deemed advisable to designate a series of Preferred Shares
consisting of one thousand (1,000) shares designated as Series A Redeemable
Preferred Shares;
NOW, THEREFORE, IT IS HEREBY RESOLVED, that pursuant to Paragraph THIRD of
the Certificate of Incorporation of the Corporation, there be and hereby is
authorized and created a series of Preferred Shares hereby designated as Series
A Redeemable Preferred Shares, to consist of one thousand (1,000) shares having
a par value of $0.01 per share, which series shall have the voting rights,
designations, powers, preferences, relative and other special rights, and
qualifications, limitations and restrictions set forth below:
1. DESIGNATION. The designation of the series of Preferred Shares
created hereby is Series A Redeemable Preferred Shares and the number of shares
constituting such series is one thousand (1,000) (the "Series A Shares").
2. RANK. The Series A Shares shall, with respect to dividend rights,
rights on redemption and rights on liquidation, winding up and dissolution, rank
prior to all classes of common shares of the Corporation and to each other class
of capital shares or series of Preferred Shares of the Corporation hereafter
created which does not expressly provide that it ranks senior to or on a parity
with the Series A Shares.
3. VOTING RIGHTS. Except as otherwise provided by law, the holder of the
Series A Shares shall not be entitled to vote on any matters with the holders of
other voting capital shares.
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4. DIVIDENDS. Except as otherwise provided in this Paragraph 4, the
holder of the Series A Shares shall not be entitled to receive dividends.
(a) GENERAL DIVIDEND OBLIGATIONS. When and as declared by the Board
of Directors of the Corporation, the Corporation shall pay to the holders of the
Series A Shares, out of the assets of the Corporation available for such payment
of dividends under the New York Business Corporation Law, payable in preference
and priority to any payment of any dividend on common shares of the Corporation,
dividends at the times and in the amounts provided in this Paragraph 4. The
Board of Directors of the Corporation shall declare and pay to the holder of
Series A Shares dividends at the Dividend Rate described in Paragraph 4.C. below
on a quarterly basis; provided that the Board of Directors may in its discretion
postpone the declaration and payment of one or more quarterly dividends so long
as dividends are declared and paid on at least an annual basis.
(b) CALCULATION OF DIVIDENDS. Dividends for each Series A Share will
be calculated cumulatively on a quarterly basis at the rate and in the manner
prescribed herein from and including the "Commencement Date" with respect to
such Series A Shares to, but excluding, the date on which the Series A Shares
are redeemed or the Liquidation Price has been received with respect to the
Series A Shares, whether or not such dividends have been declared and whether or
not there are (at the time such dividends are calculated or become payable or at
any other time) profits, surplus or other funds of the Corporation legally
available for the payment of dividends.
For the purposes of this Subparagraph 4.B., the "Commencement Date" with
respect to any Series A Share shall be deemed to be the date of issuance
regardless of the number of times transfer of such Series A Share is made on the
share records maintained by or for the Corporation and regardless of the number
of certificates which may be issued to evidence such Series A Share (whether by
reason of transfer of such Series A Share or for any other reason.)
(c) DIVIDEND RATE. Dividends payable on the Series A Shares shall be
calculated cumulatively with respect to each quarter in which dividends are due
on each Series A Share at a rate of 12% of the Liquidation Value per annum
("Dividend Rate"). To the extent not paid on the first day of each January,
April, July, and October (each a "Dividend Reference Date"), an amount equal to
all dividends which have been calculated on Series A Shares then outstanding
during the quarterly period (pro rated for a shorter period as appropriate)
ending on the day immediately preceding such Dividend Reference Date shall be
added to the Redemption Price (as described in Paragraph 7 hereof) of such
Series A Share and will remain a part thereof until (but only until) such
dividends are paid. Any subsequent dividends which are paid to the holder of
the Series A Shares in respect thereof shall, in all instances, be applied first
to the payment of amounts of dividends which have been added on previous
Dividend Reference Dates to the Redemption Price until the Redemption Price of
all Series A Shares shall be equal to the original Redemption Price, as
adjusted, herein stated.
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d. FORM OF PAYMENT. The Dividend Rate shall be payable quarterly in
cash or in common shares of the Corporation, as determined by the holders of a
majority of the outstanding Series A Shares, by notice to the Corporation at
least thirty (30) days prior to the applicable Dividend Reference Date. In the
absence of such notice, it shall be presumed that the dividend for the
applicable quarter shall be payable in cash. In the event that payment in the
form of common shares is elected by the holders of the Series A Shares, the
number of common shares issuable shall be determined by dividing the amount of
the dividend by the average Market Value (as hereinafter defined) of the
Corporation's common shares over the ten consecutive trading days ending on the
trading day immediately prior to the Dividend Reference Date. "Market Value"
shall mean the average of the high and low prices of the common shares, as
reported in The Wall Street Journal, on the American Stock Exchange (or a
similar consolidated transactions report for the exchange or other market on
which the common shares is then trading, if not the American Stock Exchange) for
the relevant date, or if no sales of common shares were made on such exchange on
such date, the average of the high and low prices of such shares as reported in
such composite transaction report for the preceding day on which sales of shares
were made on such exchange. If the common shares are not listed on a national
securities exchange at the time Market Value is to be determined, then Market
Value shall be determined by the Board of Directors of the Corporation in good
faith pursuant to such method as the Board of Directors deems appropriate and
equitable. Under no circumstances shall the Market Value of a common share be
less than its par value. All fractional shares shall be paid in cash. All
unpaid cash dividends shall be cumulative.
e. PRIORITY. So long as any Series A Shares shall be outstanding,
without the consent of the holders of a majority of the outstanding Series A
Shares, the Corporation shall not declare or pay on the common shares of the
Corporation any dividend whatsoever, whether in cash, property or otherwise, nor
shall the Corporation make any distribution on the common shares, nor shall any
common shares be purchased or redeemed by the Corporation or any subsidiary
thereof, unless (i) all dividends to which the holders of Series A Shares have
been entitled for all previous dividend periods shall have been paid or declared
and a sum of money sufficient for the payment thereof set apart, and (ii) all
Series A Shares which the Corporation was theretofore obligated to redeem in
accordance with Paragraph 7 hereof shall have been redeemed.
5. LIQUIDATION. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation, the
holders of Series A Shares then outstanding shall be entitled to be paid out of
the assets of the Corporation available for distribution to its shareholders an
amount equal to one thousand dollars ($1,000.00) for each Series A Share
outstanding (such amount, as it may be adjusted from time to time to give effect
to any share splits or combinations, recapitalizations or other similar events,
the "Liquidation Value") plus an amount equal to all accumulated but unpaid
dividends thereon to the date fixed for the liquidation, dissolution or winding
up, before any payment shall be made or any assets distributed to the holders of
common shares. Except as provided in the preceding sentence,
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holders of Series A Shares shall not be entitled to any distribution in the
event of liquidation, dissolution or winding up of the affairs of the
Corporation. If the assets of the Corporation are not sufficient to pay in full
the liquidation payments payable to the holders of the Series A Shares, then the
holders of all such shares shall share ratably in accordance with the respective
amounts to which the holders of outstanding Series A Shares would be entitled if
all amounts payable thereon were paid in full. The liquidation payment with
respect to each outstanding fractional Series A Share (if any) shall be equal to
a ratably proportionate amount of the liquidation payment with respect to each
outstanding Series A Share.
6. CONVERSION. The Series A Shares shall not be convertible into or
exchangeable for shares of any other series or class of shares of the
Corporation.
7. REDEMPTION. The Series A Shares shall be redeemable as follows:
A. OPTIONAL REDEMPTION. The Series A Shares shall be redeemable, at
the option of the Corporation, in whole or in part, at any time without penalty,
at a redemption price equal to one thousand dollars ($1,000.00) per share (the
"Redemption Price") plus an amount equal to all accumulated but unpaid dividends
thereon to the date fixed for redemption.
B. MANDATORY REDEMPTION. The Series A Shares shall be redeemed, out
of funds legally available therefor, at the Redemption Price plus an amount
equal to all accumulated but unpaid dividends thereon to the date fixed for
redemption on the following dates and in the following amounts:
(i) One hundred (100) shares (less any shares previously redeemed
pursuant to Paragraph 7.A. or 7.B.) on or before November 30, 2000;
(ii) Two hundred (200) shares (less any shares previously redeemed
pursuant to Paragraph 7.A. or 7.B.) on or before November 30, 2001;
(iii) Four hundred (400) shares (less any shares previously redeemed
pursuant to Paragraph 7.A. or 7.B.) on or before November 30, 2002; and
(iv) All outstanding shares on or before November 30, 2003.
C. REDEMPTION PROCEDURES. When the Corporation redeems the Series A
Shares, the following procedures shall apply:
(i) When less than all of the outstanding Series A Shares are being
redeemed, the shares subject to redemption shall be determined in the sole
discretion of the Corporation.
(ii) Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 days nor more than 60 days prior to the date on
which Series A Shares are
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to be redeemed (any such date, a "redemption date"), to the holder of record of
the shares to be redeemed at such holder's address as the same appears on the
share register of the Corporation. Such notice shall state: (a) the redemption
date; (b) the redemption price; (c) the number of shares subject to redemption;
and (d) the place or places where certificates for such shares are to be
surrendered for payment of the redemption price.
(iii) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in providing
money for the payment of the redemption price of the shares called for
redemption) said shares shall no longer be deemed to be outstanding and shall
have the status of authorized but unissued Series A Shares, and shall not be
reissued as Series A Shares, and all rights of the holder thereof as a
shareholder of the Corporation (except the right to receive from the Corporation
the redemption price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the Corporation shall so
require and the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid.
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