EXHIBIT 3
THE WARRANT REPRESENTED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND IS BEING OFFERED
AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID
ACT AND SUCH LAWS. THE WARRANT REPRESENTED HEREBY IS SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE WARRANT REPRESENTED HEREBY AND THE SHARES EXERCISABLE HEREUNDER
ARE ALSO SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE SET FORTH IN THE
SHAREHOLDERS AGREEMENT (AS DEFINED HEREIN). THE WARRANT REPRESENTED HEREBY HAS
NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION, ANY
STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY, NOR HAVE ANY OF
THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OF
THE WARRANTS REPRESENTED HEREBY. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
Warrant to Purchase
Series A Preferred Shares
PAMECO CORPORATION
WARRANT
To Subscribe for and Purchase
Series A Cumulative Pay-in-Kind Preferred Stock of
PAMECO CORPORATION
THIS CERTIFIES that, for value received, ____________________ (the
"Purchaser") is the owner of a warrant (the "Warrant") which entitles Purchaser
to purchase from Pameco Corporation (the "Company"), in accordance with the
terms herein, at any time after the date hereof until 5:00 p.m., New York, New
York time on [insert date which is 8 years following the Initial Closing Date],
______/1/ shares, subject to adjustment as set forth herein, of Series A
Cumulative Pay-in-Kind Preferred Stock of the Company, par value $1.00 per share
(the "Preferred Shares") at the price and on the other terms and conditions set
forth herein. This Warrant is one of the Warrants issued pursuant to that
certain Securities Purchase Agreement dated as of February 16, 2000, among the
Purchaser, Quilvest American Equity, Ltd. and the Company (as amended, from time
to time, the "Purchase Agreement"), and is subject to the following provisions,
terms and conditions.
_____________
/1/ Total of 140,000 for all Warrants issued at the Initial Closing.
1. Payment of Exercise Price and Exercise of Warrant.
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(a) Exercise of Warrant. This Warrant shall be immediately
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exercisable, in whole or in part commencing on the date hereof and continuing
from time to time hereafter during its term. This Warrant shall be exercisable
to purchase an initial amount of _________ Series A Preferred Shares (the
"Initial Amount") and such other Series A Preferred Shares as set forth in
Section 2 hereof (collectively, the "Warrant Shares").
(b) Exercise Price. This Warrant shall be exercisable at an
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initial exercise price of [insert 12,000% of initial conversion price then in
effect] per Warrant Share, subject to adjustment as set forth in Section 2
hereof (the "Exercise Price").
(c) Payment of Exercise Price. The Purchaser may pay the
-------------------------
Exercise Price for that number of Warrant Shares sought to be purchased (the
"Exercised Shares") in one or a combination of the following methods:
(1) by delivering immediately available funds to the
Company in an amount equal to the Exercise Price; or
(2) by instructing the Company to issue to the Purchaser
that number of Warrant Shares determined by multiplying the number of Exercised
Shares to which it would otherwise be entitled if it paid the Exercise Price in
accordance with clause (1) above, by a fraction, the numerator of which shall be
the excess, if any, of the Fair Market Price Per Share of the Preferred Shares
(as defined herein), as of the date of exercise, over the Exercise Price, and
the denominator of which shall be the Fair Market Price Per Share of the
Preferred Shares as of the date of exercise.
For the purposes hereof, the Fair Market Price Per Share of the Preferred Shares
on any date shall be determined by the Board of Directors of the Company
reasonably and in good faith taking into account the convertibility of such
shares into shares of Class A Common Stock, par value $.01 per share, of the
Company (the "Class A Common Stock"), to the extent such shares are convertible.
(d) Method of Exercise. This Warrant shall be exercisable during
------------------
its term by written notice ("Purchaser Notice"), substantially in the form
attached as Exhibit A. Such Purchaser Notice shall be signed by the Purchaser
and shall be delivered in person, by certified mail or by overnight courier
guaranteeing next business day delivery, to the Company, or such other person as
may be designated by the Company, at the location designated in Section 9
herein, or at such other address as the Company may from time to time designate
in writing. The Purchaser Notice shall be accompanied by full payment of the
Exercise Price in one or a combination of the methods as described in subsection
1(c) above. The certificate or certificates for the Exercised Shares shall be
registered in the name of the Purchaser and shall be legended as may be
reasonably required by the Company and/or applicable law. Subject to subsection
(e) below, the Company agrees that the Exercised Shares so purchased shall be
and are deemed to be issued to Purchaser as the record owner of such shares as
of the close of business on the date on which this Warrant shall have been
surrendered and payment made for such shares as aforesaid. Subject to subsection
(e) below, certificates for the Exercised Shares so purchased shall be
A-1
delivered to Purchaser within a reasonable time, not exceeding five days, after
the rights represented by this Warrant shall have been so exercised, and unless
this Warrant shall have been so exercised, or shall have expired, a new Warrant
representing the number of Warrant Shares, if any, with respect to which this
Warrant shall not then have been exercised, shall also be delivered to Purchaser
within such time.
(e) Restrictions on Exercise and Transfer. This Warrant may not
-------------------------------------
be exercised if the issuance of the Warrant Shares upon such exercise or the
method of payment of consideration for such Warrant Shares would constitute a
violation of any applicable federal or state securities laws, the rules and
regulations of an applicable securities exchange or quotation, system, or the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules
and regulations promulgated thereunder (the "HSR Act"). In furtherance of the
foregoing, and not in limitation thereof, upon receipt of notice from the
Purchaser that it intends to exercise the Warrant, the Company shall promptly
comply with the provisions of Section 7.7 of the Purchase Agreement. The
Purchaser acknowledges that as of the date hereof it has entered into the
Shareholders Agreement dated as of February 18, 2000 (as amended, from time to
time, the "Shareholders Agreement"), among the Purchaser, the Company and
certain other shareholders of the Company, which pertains to the transferability
of this Warrant and the Warrant Shares.
2. Adjustment of Exercise Price and Number of Warrant Shares. The
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number and kind of securities purchasable upon the exercise of this Warrant and
the Exercise Price shall be subject to adjustment from time to time upon the
happening of certain events, as described in this Section 2.
(a) Certain Proportional Adjustments. In case at any time after
--------------------------------
the date hereof, there shall be paid a dividend on, or a distribution is made
with respect to, the Preferred Shares (other than the dividends payable pursuant
to Section 3(a) of the Preferred Designation), and such dividend or distribution
is paid or made in the form of additional Preferred Shares, or all or any
portion of the outstanding Preferred Shares shall be subdivided into a greater
number of shares of Preferred Shares, then the Exercise Price in effect at the
opening of business on the day following the day upon which such dividend is
paid, such distribution is made or such subdivision becomes effective shall be
proportionately reduced and, conversely, in case at any time after the date
hereof, all or any portion of the shares of Preferred Shares outstanding shall
each be combined into a smaller number of shares of Preferred Shares, the
Exercise Price in effect at the opening of business on the day following the day
upon which such combination becomes effective shall be proportionately
increased, such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such dividend, distribution, subdivision or combination becomes effective.
(b) Minimum Adjustment. Notwithstanding any other provision of
------------------
this Section 3, no adjustment to the Exercise Price shall reduce the Exercise
Price below the then par value per share of the Preferred Shares, and any such
purported adjustment shall instead reduce the Exercise Price to such par value.
The Company hereby covenants not to take any action (A) to increase the par
value per share of the Preferred Shares or (B) that would or does result in any
adjustment in the Exercise Price that would cause the Exercise Price to be less
than the then par value per share of the Preferred Shares. Notwithstanding any
other provision of this
2
Section 2, no adjustment in the Exercise Price need be made until all cumulative
adjustments amount to 1% or more of the Exercise Price as last adjusted. Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment.
(c) Fractional Interests. The Company shall not issue fractional
--------------------
shares or scrip representing fractional shares of Preferred Shares upon exercise
of Warrants. Instead the Company shall pay a cash adjustment based upon the Fair
Market Price Per Share of the Preferred Shares on the business day immediately
preceding the date of exercise. If more than one Warrant shall be surrendered
for exercise at one time by the same Holder, the number of shares issuable upon
exercise thereof shall be computed on the basis of the aggregate number of
Warrants so surrendered.
(d) Merger, Consolidation, Etc. In the event that the Company
--------------------------
shall be a party to any transaction, including without limitation any (i)
recapitalization or reclassification of the Preferred Shares (other than a
change in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination of the Preferred
Shares), (ii) any consolidation of the Company with, or merger of the Company
into, any other individual, corporation, partnership, firm, joint venture,
association, limited liability company or partnership, trust, unincorporated
organization or governmental body (each referred to as a "Person"), any merger
of another Person into the Company (other than a merger which does not result in
a reclassification, conversion, exchange or cancellation of outstanding shares
of Preferred Shares), (iii) any sale or transfer of all or substantially all of
the assets of the Company or (iv) any compulsory share exchange, pursuant to
which the Preferred Shares is converted into the right to receive other
securities, cash or other property, then lawful provision shall be made as part
of the terms of such transaction whereby the Purchaser of each Warrant Share
then outstanding shall have the right thereafter, to convert such share into the
kind and amount of securities, cash and other property receivable upon such
recapitalization, reclassification, consolidation, merger, sale, transfer or
share exchange by a holder of the number of shares of Preferred Shares into
which such Warrant Share might have been exercised immediately prior to such
recapitalization, reclassification, consolidation, merger, sale, transfer or
share exchange. The Company or the Person formed by such consolidation or
resulting from such merger or which acquires such assets or which acquires the
Company's shares, as the case may be, shall make provisions in its certificate
or articles of incorporation, or in other constituent documents, to establish
such right. Such certificate or articles of incorporation, or other constituent
documents, shall provide for adjustments which, for events subsequent to the
effective date of such certificate or articles of incorporation, or other
constituent documents, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section 2. The above provisions shall
similarly apply to successive recapitalization, reclassifications,
consolidations, mergers, sales, transfers or share exchanges.
(e) Reservation of Shares. The Company shall at all times
---------------------
reserve and keep available, out of its authorized and unissued capital stock,
solely for the purpose of effecting the exercise of the Warrants, such number of
shares of Preferred Shares, free of preemptive rights, as shall from time to
time be sufficient to effect the exercise of all Warrants from time to time
outstanding. The Company shall from time to time, in accordance with the laws of
the State of Georgia, use its best efforts to increase the authorized number of
Preferred Shares if at any time the number of shares of authorized and unissued
Preferred Shares shall not
3
be sufficient to permit the conversion of all the then outstanding Warrants. The
Company shall pay any and all issue or other taxes that may be payable in
respect of any issue or delivery of Preferred Shares on conversion of the
Warrants. The Company shall not, however, be required to pay any tax which may
be payable in respect of any transfer involved in the issue or delivery of
Preferred Shares (or other securities or assets) in a name other than that in
which the Warrants so exercised were registered.
(f) Certain Company Obligations. In case:
---------------------------
(i) of any reclassification of the Preferred Shares or
the Class A Common Stock (other than a subdivision or combination of the
outstanding preferred or common stock, or a change in par value, or from par
value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for which approval
of any shareholders of the Company shall be required, or of the sale or transfer
of all or substantially all of the assets of the Company or of any compulsory
share exchange whereby the Preferred Shares or the Class A Common Stock is
converted into other securities, cash or other property; or
(ii) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be mailed to the Purchasers, at their last
addresses as they shall appear upon the stock transfer books of the Company, at
least 20 days prior to the proposed record or effective date, as the case may
be, notice stating the date on which such action, reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up is expected to become effective, and the date as of which it is
expected that holders of record of the Preferred Shares or the Class A Common
Stock shall be entitled to exchange their Preferred Shares or Class A Common
Stock for securities or other property deliverable upon such action,
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the validity of the
corporate action required to be specified in such notice).
(g) Shares Deemed Outstanding. For purposes of this Section 2,
-------------------------
the number of Series A Preferred Shares at any time outstanding shall not
include any Preferred Shares then owned or held by or for the account of the
Company.
3. Redemption by Company.
---------------------
(a) The Company shall have the option to redeem (subject to the
legal availability of funds therefor) all, or any part of, the outstanding (and
due to be issued and outstanding as of such date pursuant to Section 2 above)
Warrants as set forth below. From time to time, on and after the sixth
anniversary of the Issue Date (as defined in the Preferred Designation), the
Company may redeem the Warrants at a price per share of Class A Common Stock
into which the Series A Preferred Shares for which this Warrant is then
exercisable are then convertible, payable in cash, equal to 105% of the excess
of (i) the fair market value of such Class A Common Stock (the "Common Fair
Market Value") over (ii) the Exercise Price then in
4
effect (the "Redemption Price"). As used herein, the Common Fair Market Value
shall equal (A) the Weighted Average Trading Price (as defined in the Purchase
Agreement) during the 10 trading days immediately prior to the date of the
Redemption Notice or (B) if the Class A Common Stock is not traded on a national
securities exchange or Nasdaq, then as determined reasonably and in good faith
by the Board of Directors. If the Redemption price as calculated is negative,
then the Redemption Price shall be $0.01.
(b) In case of redemption of less than all of the outstanding
Warrants issued pursuant to or in connection with the Purchase Agreement, such
Warrants to be redeemed shall be redeemed on a pro rata basis among all
Purchasers.
(c) Notice of any redemption (the "Redemption Notice") shall be
sent by or on behalf of the Company not less than 30 nor more than 60 days prior
to the date specified for redemption in such notice (the "Redemption Date"), by
U.S. express mail, overnight courier guaranteeing next Business Day delivery,
postage or charges prepaid, to the Purchaser at its last address as it shall
appear on the books of the Purchaser; provided, however, the validity of the
proceedings for the redemption of any Warrants shall only be affected with
respect to any Purchaser to whom the Company has failed to give notice or except
as to the Purchaser to whom notice was defective. In addition to any information
required by law, such notice shall state: (i) the Redemption Date; (ii) the
Redemption Price; (iii) the number of Warrants to be redeemed and, if less than
all such shares held by such Purchaser are to be redeemed, the number of such
shares to be redeemed; (iv) the place or places where the Warrants are to be
surrendered for payment of the Redemption Price; (v) the Exercise Price then in
effect; and (vi) that the Purchaser's right to exercise the Warrants for
Preferred Shares shall terminate on the close of business on the third business
day preceding such Redemption Date. Upon the sending of any such notice of
redemption, the Company shall become obligated to redeem on the applicable
Redemption Date all such Warrants called for redemption and the Company shall
take all steps necessary to pay the Redemption Price on the Redemption Date.
(d) If notice has been sent in accordance with Section 3(c)
above and provided that on or before the Redemption Date specified in such
notice, all funds necessary for such redemption shall have been set aside by the
Company, separate and apart from its other funds in trust for the pro rata
benefit of the Purchaser of such Warrants so called for redemption, so as to be,
and to continue to be available therefor, then, from and after the applicable
Redemption Date, the Warrants so called for redemption shall no longer be deemed
to be outstanding and shall no longer be exercisable, and all rights of the
Purchaser thereof as Warrant holders (except the right to receive from the
Company the Redemption Price) shall cease. Upon surrender, in accordance with
said notice, of the certificates for any Warrants so redeemed (properly endorsed
or assigned for transfer, if the Company shall so require and the notice shall
so state), such shares shall be redeemed by the Company at the Redemption Price.
(e) Any deposit of funds with a bank or trust company for the
purpose of redeeming Warrants shall be irrevocable except that any balance of
monies so deposited by the Company and unclaimed by the Purchaser of the
Warrants entitled thereto at the expiration of one year from the applicable
Redemption Date shall be repaid, together with any interest or other earnings
earned thereon, to the Company, and after any such repayment, the Purchaser of
the
5
Warrants entitled to the funds so repaid to the Company shall look only to the
Company for payment without interest or other earnings.
4. Put Right.
---------
(a) The Purchaser is entitled to sell all, or any part of, the
outstanding (and due to be issued and outstanding as of such date pursuant to
Section 2 hereof) Warrants to the Company as set forth below in this Section 4.
The Company shall take all necessary actions to pay the applicable put price on
the Put Date (as defined below), subject to the provisions of the Georgia
Business Corporation Code, as amended ("GBCC") applicable to the repurchase of
its securities. If there shall be a legal impediment imposed by the GBCC to the
Company's repurchase of the Warrant pursuant to this Section 4, the Company
shall use its best efforts to remove or remedy such impediment and pay the Put
Price as soon as possible. Commencing upon the fifth anniversary of the Issue
Date, Purchaser may require the Company to purchase, and the Company shall
purchase, all or any part of the Warrants owned by it (the "Put Right") at a
price per share of Class A Common Stock into which the Series A Preferred Shares
for which this Warrant is then exercisable are then convertible, payable in
cash, equal to the excess of (x) the Common Fair Market Value over (y) the
Exercise Price then in effect (the "Put Price").
(b) Notice of any Put Right shall be sent to the Company by or
on behalf of the Purchasers exercising not less than 5 nor more than 30 days
prior to the date specified for sale in such notice (the "Put Date"), by U.S.
express mail or overnight courier guaranteeing next Business Day delivery,
postage or charges prepaid. Such notice shall state: (i) the Put Date; (ii) the
number of Warrants to be sold to the Company; and (iii) the date and the place
where for the closing of the Put Right as set forth herein.
5. Blue Sky Exemption. The purchase of this Warrant and the
------------------
underlying Warrant Shares is expressly conditioned upon the exemption from
qualification of the offer and sale of this Warrant and the underlying Warrant
Shares from applicable Federal and state securities laws. The Company shall not
be required to qualify this transaction under the securities laws of any
jurisdiction and, should qualification be necessary, the Company may rescind any
sale contracted in the jurisdiction.
6. Exchange and Replacement of Warrant. Upon receipt by the Company
-----------------------------------
of evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and, in case of loss, theft or destruction, of an
indemnity reasonably satisfactory to it, and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
this Warrant, if mutilated, the Company will make and deliver a new Warrant of
like tenor, in lieu thereof.
7. Reservation and Listing of Securities. The Company shall at all
-------------------------------------
times reserve and keep available out of its authorized shares of preferred
stock, solely for the purpose of issuance upon the exercise of this Warrant,
such number of shares of preferred stock or other securities, properties or
rights as shall be issuable upon the exercise thereof. The Company covenants and
agrees that, upon exercise of this Warrant and payment of the Exercise Price
therefor, all shares of preferred stock and other securities issuable upon such
exercise shall be
6
duly and validly issued, fully paid, nonassessable and not subject to the
preemptive rights of any stockholder.
8. No Rights as Shareholders. Nothing contained herein shall be
-------------------------
construed as conferring upon the Purchaser or its transferees the right to vote
or to receive dividends or to consent to or receive notice as shareholders in
respect of any meeting of shareholders for the election of directors of the
Company or any other matter, or any rights whatsoever as shareholders of the
Company.
9. Notices. All notices required to be given to the parties
-------
hereunder shall be in writing and shall be deemed to have been given
sufficiently for all purposes when presented personally to such party, sent by
facsimile to such party or sent by U.S. express mail, return receipt requested,
or by overnight courier guaranteeing next business day delivery, to such party
at its address set forth below:
Company: Pameco Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Vice Chairman and Chief Financial Officer
Telecopier: 000-000-0000
Telephone: 000-000-0000
Purchaser: ________________________
________________________
________________________
Attention: ____________
Telecopier: ____________
Telephone: ____________
Such notice shall be deemed to be given when received if delivered personally,
at the time of transmittal if sent via facsimile during regular business hours
(if sent outside of such regular business hours then at 9:00 a.m. on the next
business day) or the next business day after the date mailed as aforesaid or
delivered to an overnight courier. Any notice of any change in such address
shall also be given in the manner set forth above. Whenever the giving of
notice is required, the giving of such notice may be waived in writing by the
party entitled to receive such notice.
10. Governing Law; Jurisdiction, Etc. This Warrant Certificate shall
--------------------------------
be governed by and construed in accordance with the laws of the State of New
York without regard to its conflicts of laws principles. The Purchaser and the
Company each agrees to submit to the jurisdiction of the courts of the State of
New York in New York County and to the jurisdiction of the United States
District Court for the Southern District of New York, and hereby agrees that
service of process may be effected in accordance with the delivery methods
described in Section 9 above.
11. Amendment. The Company may from time to time supplement or amend
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this Warrant in order to cure any ambiguity or to correct or supplement any
provision contained
7
herein which may be defective or inconsistent with any provisions herein, or to
make any other provisions in regard to matters or questions arising hereunder
which the Company may deem necessary or desirable and which shall not be
inconsistent with the provisions of this Warrant and, so long as in the case of
any of the foregoing, it shall not adversely affect the interests of the
Purchaser. Any other amendments hereto may only be made in a writing signed by
both the Company and the Purchaser.
12. Successors. All the covenants and provisions hereof by or for the
----------
benefit of the Company or the Purchaser shall bind and inure to the benefit of
their respective successors and permitted assigns hereunder, except as otherwise
provided herein.
13. No Benefits to Others. Nothing herein shall be construed to give
---------------------
to any person or corporation, other than the Company and the Purchaser (and
their successors and permitted assigns), any legal or equitable right, remedy or
claim hereunder.
14. Captions. The Captions of the sections and subsections hereof
--------
have been inserted for convenience only and shall have no substantive effect.
IN WITNESS WHEREOF, the Company has duly executed this Warrant as of
the _____ day of ____________, ____.
PAMECO CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
8
