EXHIBIT 4(l)
THIS SECURITY HAS BEEN ACQUIRED IN A TRANSACTION NOT INVOLVING ANY PUBLIC
OFFERING AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE ACT.
PICO PRODUCTS, INC.
______________________________
STOCK PURCHASE WARRANT
______________________________
Certificate No. 5
Dated as of November 21, 1996
1. GRANT. For consideration of $7.00 and other value received, PICO
PRODUCTS, INC., a New York corporation (the "Company"), hereby grants to ALLIED
CAPITAL CORPORATION or its registered assigns (the "Holder"), at the exercise
price set forth in Section 3 below, the right to purchase up to that number of
shares (the "Available Number of Shares") (subject to adjustment from time to
time as hereinafter set forth) equal to 2.1% of the number of shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock") (i)
resulting from the exercise from time to time during the Exercise Period, as
defined below, by employees of options heretofore granted (including all options
approved by the stockholders in December 1996), and (ii) into which the "Second
Warrants" (as such term is defined in the Investment Agreement dated as of
February 10, 1993, by and among the Company and the Investors named therein) are
convertible, in the event the Second Warrants are issued.
2. EXERCISE PERIOD. The right to exercise this Warrant, from time to
time, for the full amount of the Available Number of Shares at such time or for
some lesser amount, shall commence as of the date hereof, and shall expire on
that date (the "Expiration Date") which is the later of: (i) three years from
the date on which all Obligations with respect to the Debentures are satisfied
in full; or (ii) six years from the date hereof. Such period shall be referred
to herein as the "Exercise Period". No exercise of this Warrant shall result in
its termination; it shall remain in full force and effect until the termination
of the Exercise Period.
3. EXERCISE PRICE. The aggregate exercise price of this Warrant (the
"Exercise Price") shall be equal to the product of (i) $1.81 and (ii) the number
of shares of Common Stock
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to be acquired pursuant to the exercise of this Warrant (such shares are
hereinafter referred to as the "Warrant Shares").
4. ANTI-DILUTION ADJUSTMENTS. The Available Number of Shares and the
Exercise Price of this Warrant shall be subject to adjustment from time to time
as follows:
(a) If the Company shall issue, or be deemed to have issued (pursuant
to subsection (3) of Section 4(b)), any shares of Common Stock, (other than
"Excluded Stock" as defined below) for a consideration (determined in the manner
provided in subsections (1), (2) and (3) of Section 4(b)) per share less than
the Exercise Price, the Exercise Price to be in effect following such issuance
shall be adjusted to a price (calculated to the nearest cent) determined by
dividing:
(I) an amount equal to the sum of (x) the number of shares of
Common Stock outstanding immediately prior to such issue (including as
outstanding all shares of Common Stock issuable upon exercise of the
Warrants) multiplied by the then existing Exercise Price, and (y) the
consideration, if any, received by the Company upon such issue; by
(II) the total number of shares of Common Stock outstanding
immediately after such issue (including as outstanding all shares of
Common Stock issuable upon exercise of the Warrants).
No adjustment of the Exercise Price however shall be made in an amount
less than $.001 per share, and any such lesser adjustment shall be carried
forward and shall be made at the time and together with the next subsequent
adjustment which together with any adjustments so carried forward shall amount
to $.001 per share or more.
(b) For the purposes of Section 4(a), the following provisions shall
be applicable:
(1) In the case of the issuance of Common Stock for cash, the
consideration shall be deemed to be the amount of cash paid therefor without
deducting any discounts, commissions or expenses paid or incurred by the Company
in connection with the issuance and sale thereof.
(2) In the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration other than
cash shall be deemed to be the fair value thereof as determined in good faith by
the Board of Directors; provided, however, that if, at the time of such
determination, the Common Stock is traded in the over-the-counter market or on a
national or regional securities exchange, such fair market value as determined
by the Board of Directors shall be the "fair market value" (as defined in
Section 9(b) below) of the shares of Common Stock being issued.
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(3) In the case of the issuance of (i) options to purchase or
rights to subscribe for Common Stock (other than Excluded Stock), (ii)
securities by their terms convertible into or exchangeable for Common Stock
(other than Excluded Stock), or (iii) options to purchase or rights to subscribe
for securities by their terms convertible into or exchangeable for Common Stock
(other than Excluded Stock):
(A) the aggregate maximum number of shares of Common Stock
deliverable upon exercise of such options to purchase or rights to subscribe for
Common Stock shall be deemed to have been issued at the time such options or
rights were issued and for consideration equal to the aggregate consideration
(determined in the manner provided in subsections (1) and (2) of this Section
4(b)), if any, received (or to be received) by the Company upon the issuance of
such options or rights and upon exercise thereof for the Common Stock covered
thereby;
(B) the aggregate maximum number of shares of Common Stock
deliverable upon conversion of or in exchange for any such convertible or
exchangeable securities, or upon the exercise of options to purchase or rights
to subscribe for such convertible or exchangeable securities and subsequent
conversion or exchange thereof, shall be deemed to have been issued at the time
such securities were issued or such options or rights were issued and for
consideration equal to the aggregate consideration received (or to be received)
by the Company for any such securities and related options or rights (excluding
any cash received on account of accrued interest or accrued dividends), and upon
the conversion or exchange of such securities or the exercise of any related
options or rights (the consideration in each case to be determined in the manner
provided in subsections (1) and (2) of this Section 4(b)); and
(C) on any change in the number of shares of Common Stock
deliverable upon exercise of any such options or rights or conversion of or
exchange for such convertible or exchangeable securities, or on any change in
the minimum purchase price of such options, rights or securities (other than a
change resulting from the anti-dilution provisions, if any, of such options,
rights or securities, unless the event giving rise to such adjustment does not
also give rise to an adjustment in the Exercise Price pursuant to the terms of
this Section 4), then the Exercise Price shall forthwith be readjusted to such
Exercise Price as would have been obtained had the adjustment made upon (x) the
issuance of such options, rights or securities not exercised, converted or
exchanged prior to such change, as the case may be, been made upon the basis of
such change or (y) the options or rights related to such securities not
converted or exchanged prior to such change, as the case may be, been made upon
the basis of such change.
(c) "Excluded Stock" shall mean:
(1) all shares of Common Stock issued and outstanding on the
effective date hereof;
(2) all shares of Common Stock into which securities issued and
outstanding on the date hereof are convertible (including shares issuable to
each of City National
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Bank, Scimitar Development Capital Fund, Scimitar Development Capital "B" Fund,
Shipley Raidy Capital Partners, LP and The Sinkler Corporation, in each case
pursuant to warrants issued either prior to or on the date hereof);
(3) subject to adjustment pursuant to stock splits, stock
dividends and the like, all shares of Common Stock or other securities issued to
employees of the Company under any agreement, arrangement or plan, including any
stock incentive plan, approved by the Board of Directors and the stockholders of
the Company and outstanding as of the date hereof (including all options
approved by the stockholders in December 1996); and
(4) all shares of Common Stock distributed as to holders of the
Company's Series A Redeemable Preferred Stock as payment in kind of dividends,
as permitted by the terms thereof.
(d) If the number of shares of Common Stock outstanding at any time
after the date hereof is increased by a stock dividend payable in shares of
Common Stock or by a subdivision or split-up of shares of Common Stock, then, on
the date such payment is made or such change is effective, the Exercise Price in
effect immediately prior to such event shall be proportionately decreased, and
the Available Number of Shares shall be proportionately increased.
(e) If the number of shares of Common Stock outstanding at any time
after the date hereof is decreased by a combination of the outstanding shares of
Common Stock, then, on the effective date of such combination, the Exercise
Price in effect immediately prior to such event shall be proportionately
increased, and the number of Available Number of Shares shall be proportionately
decreased.
(f) In case, at any time after the date hereof, of any capital
reorganization, or any reclassification of the Common Stock of the Company
(other than a change in par value or as a result of a stock dividend or
subdivision, split-up or combination of shares), or of the consolidation or
merger of the Company with or into another person, or of the sale or other
disposition of all or substantially all the properties and assets of the Company
as an entirety to any other person, the Holder shall, after such reorganization,
reclassification, consolidation, merger, sale or other disposition, receive upon
exercise of the Warrant, the kind and number of shares of stock, or other
securities or property or cash of the Company or of the entity resulting from
such consolidation or surviving such merger or to which such properties and
assets shall have been sold or otherwise disposed, to which a holder of the
Available Number of Shares would have been entitled on such reorganization,
reclassification, consolidation, merger, sale or other disposition had this
Warrant been exercised immediately prior to such event. The provisions of this
Section 4(f) shall similarly apply to successive reorganizations,
reclassifications, consolidations, mergers, sales or other dispositions.
(g) Upon any adjustment of the Exercise Price, then and in each such
case the Company shall give written notice thereof, by first class mail, postage
prepaid, addressed to the
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holder of this Warrant at the last registered address of such holder as shown on
the books of the Company, which notice shall state the facts leading to, and the
Exercise Price resulting from, such adjustment.
5. PRIOR NOTICE AS TO CERTAIN EVENTS. If at any time:
(a) the Company shall pay any dividend payable in stock upon its
Common Stock or make any distribution (other than cash dividends) to the holders
of its Common Stock;
(b) the Company shall offer for subscription PRO RATA to the
holders of its Common Stock any additional shares of stock of any class or any
other rights;
(c) there shall be any reorganization or reclassification of the
capital stock of the Company, or a consolidation or merger of the Company with,
or a sale of all or substantially all its assets to, another entity; or
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in each such case, the Company shall give prior written notice,
by first class mail, postage prepaid, addressed to the Holder at its address
shown on the books of the Company, of the date on which (i) the books of the
Company shall close or a record shall be taken for such stock dividend,
distribution or subscription rights or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up shall take place, as the case may be. Such notice shall also specify
the date as of which the holders of the Common Stock of record shall participate
in said dividend, distribution or subscription rights or shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification, dissolution, liquidation or winding up,
as the case may be. Such written notice shall be given at least 10 days prior
to the action in question.
6. RESERVATION OF COMMON STOCK. The Company shall, at all times, reserve
and keep available for issuance and delivery upon the exercise of this Warrant
such number of its authorized but unissued shares of Common Stock or other
securities of the Company as will be sufficient to permit exercise for the full
amount of the Available Number of Shares. Upon such issuance, all of the
Warrant Shares will be validly issued, fully paid and nonassessable, free and
clear of all liens, security interests, charges and other encumbrances or
restrictions on sale and free and clear of all preemptive rights.
7. NO VOTING RIGHTS; LIMITATIONS OF LIABILITY. Prior to exercise, this
Warrant will not entitle the Holder to any voting rights or other rights as a
stockholder of the Company. No provision of this Warrant, in the absence of
affirmative action by the Holder to exercise this Warrant, and no enumeration in
this Warrant of the rights or privileges of the Holder, will give rise to any
liability of such Holder for the Exercise Price.
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8. RECORD OF AVAILABLE NUMBER OF SHARES; NOTICE. At all times during
the Exercise Period, the Company shall maintain a complete and accurate record
of the aggregate number of options exercised by employees from and after the
date hereof. If at any time an employee shall exercise an option to purchase
Common Stock, then, in each such case, the Company shall give prompt written
notice, by first class mail, postage prepaid, addressed to the Holder at its
address shown on the books of the Company, of the date of issuance of the
resulting shares of Common Stock and the number of such shares.
9. EXERCISE PROCEDURE. (a) This Warrant may be exercised from time
to time prior to the Expiration Date, by presenting it and tendering the
Exercise Price, at the option of the Holder (i) in legal tender, or (ii) by bank
cashier's or certified check, at the principal office of the Company along with
written subscription substantially in the form of Exhibit "A" attached hereto.
The date on which this Warrant is thus presented, accompanied by tender or
payment as hereinbefore or hereinafter provided, is referred to herein as the
"Exercise Date." The Company shall forthwith at its sole expense (including the
payment of issue taxes), issue and deliver to Holder certificates for the proper
number of Warrant Shares upon exercise of this Warrant within 10 days after the
Exercise Date, and such Warrant Shares shall be deemed issued and the Holder
deemed the holder of record of such Warrant Shares, for all purposes as of the
opening of business on the Exercise Date, notwithstanding any delay in the
actual issuance.
(b) The Company shall pay any and all documentary, stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of the
Warrant Shares.
10. CASHLESS EXERCISE.
(a) RIGHT TO CONVERT. Notwithstanding anything herein to the
contrary, in lieu of payment of the applicable Exercise Price, the Holder may
elect to receive upon exercise of this Warrant, the number of Warrant Shares
reduced by a number of shares of Common Stock having the aggregate Fair Market
Value equal to the aggregate Exercise Price for the Warrant Shares.
(b) FAIR MARKET VALUE. For purposes hereof, the Fair Market Value of
a share of Common Stock is determined as follows:
(i) If the Common Stock of the Company is listed on a national
securities exchange or admitted to unlisted trading privileges on such exchange
or listed for trading on the Nasdaq Stock Market (National Market), the Fair
Market Value shall be the last reported sale price of the Common Stock on such
exchange or system on the last trading day prior to the date of exercise of this
Warrant or if no such sale is made on such day, the average closing bid and
asked prices for such day on such exchange or system.
(ii) If the Common Stock of the Company is not so listed or
admitted to unlisted trading privileges, the Fair Market Value shall be the mean
of the last reported bid and
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asked prices reported by the National Quotation Bureau, Inc., on the last
trading day prior to the date of the exercise of this Warrant.
(iii) If the Common Stock of the Company is not so listed or
admitted to unlisted trading privileges and bid and asked prices are not so
reported, the Fair Market Value shall be an amount reasonably determined in such
reasonable manner as may be prescribed by the Board of Directors of the Company.
(c) METHOD OF EXERCISE. This Warrant may be exercised in
accordance with the provisions of this Section 9 by the surrender of this
Warrant at the principal office of the Company together with a written statement
specifying that the Holder thereby intends to so exercise the Warrant. With the
exception of the payment of the Exercise Price, the provisions of Section 8
hereof shall apply to any such exercise.
11. SALE OF WARRANT OR SHARES. Neither this Warrant nor any of the
Warrant Shares have been registered under the Act or under the securities laws
of any state. Neither this Warrant nor any of the Warrant Shares (when issued)
may be sold, assigned, transferred, pledged or hypothecated or otherwise
disposed of in the absence of: (a) an effective registration statement for this
Warrant or the Warrant Shares, as the case may be, under the Act and such
registration or qualification as may be necessary under the securities laws of
any state, or (b) an opinion of counsel reasonably satisfactory to the Company
that such registration or qualification is not required. The Company shall
cause a certificate or certificates evidencing all or any of the Warrant Shares
issued upon exercise of the purchase rights herein prior to said registration
and qualification of such shares to bear the following legend:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES
LAWS OF ANY STATE. THE SHARES MAY NOT BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND SUCH REGISTRATION OR
QUALIFICATION AS MAY BE NECESSARY UNDER THE SECURITIES LAWS OF ANY
STATE, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION OR QUALIFICATION IS NOT REQUIRED.
12. TRANSFER. This Warrant shall be registered on the books of the
Company which shall be kept at the offices of the Company for that purpose, and
shall be transferable in whole or in part, but only on such books by the Holder
in person or by duly authorized attorney with written notice substantially in
the form of Exhibit "B" attached hereto, and only in compliance with the
preceding paragraph. The Company may issue appropriate stop orders to its
transfer agent to prevent a transfer in violation of the preceding paragraph.
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13. REPLACEMENT OF WARRANT. At the request of the Holder and on
production of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant and (in the case of loss, theft
or destruction) if required by the Company, upon reasonably satisfactory
indemnification, the Company, at Holder's expense, will issue in lieu thereof a
new Warrant of like tenor.
14. INVESTMENT COVENANT. By its acceptance hereof, the Holder
represents and warrants that this Warrant is, and any Warrant Shares issued
hereunder will be, acquired for its own account for investment purposes, and the
Holder covenants that it will not distribute the same in violation of any state
or federal law or regulation.
15. GOVERNING LAW. This Warrant shall be construed according to the
laws of New York (other than its conflict of law rules).
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
on its behalf, in its corporate name, by its Chief Executive Officer, and its
corporate seal to be hereunto affixed and the said seal to be attested by its
Secretary, as of the 21st day of November, 1996.
ATTEST: PICO PRODUCTS, INC.
a New York corporation
By: /s/ Spencer W. Franck, Jr. By: /s/ Everett Keech [Seal]
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Spencer W. Franck, Jr., Secretary Everett Keech, Chief Executive Officer
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EXHIBIT A
IRREVOCABLE SUBSCRIPTION
To: PICO PRODUCTS, INC.
The undersigned hereby elects to exercise its right under the attached
Warrant by purchasing ________________ shares of the Common Stock of PICO
PRODUCTS, INC., and hereby irrevocably subscribes to such issue. The
certificates for such shares shall be issued in the name of:
______________________________
(Name)
______________________________
(Address)
______________________________
(Taxpayer Number)
and delivered to:
______________________________
(Name)
______________________________
(Address)
The Exercise Price of $1.81 per share is enclosed.
OR
In lieu of payment of the Exercise Price, the undersigned hereby invokes
the provisions of Section 9 of the Warrant.
Date:_______________
Signed: ________________________________________
(Name of Holder, Please Print)
________________________________________
(Address)
________________________________________
(Signature)
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EXHIBIT B
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
_______________________________
(Name)
_______________________________
(Address)
the attached Warrant, together with all right, title and interest therein
to purchase _____________ shares of the Common Stock of PICO PRODUCTS, INC., and
does hereby irrevocably appoint _______________________ as attorney-in-fact to
transfer said Warrant on the books of PICO PRODUCTS, INC., with full power of
substitution in the premises.
Done this ______ day of ____________ 19____.
______________________________
(Signature)
______________________________
(Name and title)
______________________________
______________________________
(Address)
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