<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
PAMECO CORPORATION
------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
---------------------------------------
(Title of Class of Securities)
697934305
---------
(CUSIP Number)
Angus C. Littlejohn, Jr.
Littlejohn & Co., LLC
115 East Putnam Avenue
Greenwich, Connecticut 06830
(203) 861-4005
-----------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 6, 2000
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D/A, and is filing this
schedule because of Rule 13D/A-1(b)(3) or (4), check the following box | |.
Check the following box if a fee is being paid with the statement.| | (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13D/A-7.)
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 11
<PAGE>
CUSIP No.697934305 SCHEDULE 13D/A Page 2 of 11 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Littlejohn Fund II, L.P.
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS
WC
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware, United States
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF
16,633,779
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 3,697,661
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
16,633,779
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
4,630,994
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,264,773
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)*
89.76%
________________________________________________________________________________
14e TYPE OF REPORTING PERSON
PN
________________________________________________________________________________
*Percentage based on a total outstanding of 23,689,643 shares of Common
Stock, consisting of (i) 3,082,330 shares of Common Stock, (ii) 140,000 shares
of Series A Preferred Stock, as converted into 4,666,666 shares of Common Stock,
(iii) 62,500 shares of Series B Preferred Stock, as converted into 3,698,223
shares of Common Stock, (iv) 62,500 shares of Series C Preferred Stock, as
converted into 7,575,758 shares of Common Stock, and (v) warrants to purchase
140,000 shares of Series A Preferred Stock, as exercised and as converted into
4,666,666 shares of Common Stock.
Page 2 of 11
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CUSIP No.697934305 SCHEDULE 13D/A Page 3 of 11 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Littlejohn Associates II, L.L.C.
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS
AF
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware, United States
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF
16,633,779
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 3,697,661
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
16,633,779
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
4,630,994
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,264,773
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)*
89.76%
________________________________________________________________________________
14e TYPE OF REPORTING PERSON
OO
________________________________________________________________________________
*Percentage based on a total outstanding of 23,689,643 shares of Common
Stock, consisting of (i) 3,082,330 shares of Common Stock, (ii) 140,000 shares
of Series A Preferred Stock, as converted into 4,666,666 shares of Common Stock,
(iii) 62,500 shares of Series B Preferred Stock, as converted into 3,698,223
shares of Common Stock, (iv) 62,500 shares of Series C Preferred Stock, as
converted into 7,575,758 shares of Common Stock, and (v) warrants to purchase
140,000 shares of Series A Preferred Stock, as exercised and as converted into
4,666,666 shares of Common Stock.
Page 3 of 11
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CUSIP No.697934305 SCHEDULE 13D/A Page 4 of 11 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Angus C. Littlejohn, Jr.
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS
AF
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF
16,633,779
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 3,697,661
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
16,633,779
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
4,630,994
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
21,264,773
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)*
89.76%
________________________________________________________________________________
14e TYPE OF REPORTING PERSON
IN
________________________________________________________________________________
*Percentage based on a total outstanding of 23,689,643 shares of Common
Stock, consisting of (i) 3,082,330 shares of Common Stock, (ii) 140,000 shares
of Series A Preferred Stock, as converted into 4,666,666 shares of Common Stock,
(iii) 62,500 shares of Series B Preferred Stock, as converted into 3,698,223
shares of Common Stock, (iv) 62,500 shares of Series C Preferred Stock, as
converted into 7,575,758 shares of Common Stock, and (v) warrants to purchase
140,000 shares of Series A Preferred Stock, as exercised and as converted into
4,666,666 shares of Common Stock.
Page 4 of 11
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CUSIP No.697934305 SCHEDULE 13D/A Page 5 of 11 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Quilvest American Equity Ltd.
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS
WC
________________________________________________________________________________
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
British Virgin Islands
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF
-0-
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 4,590,202
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
4,590,202
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,590,202
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)*
65.1%
________________________________________________________________________________
14e TYPE OF REPORTING PERSON*
CO
________________________________________________________________________________
*Percentage based on a total outstanding of 7,055,863 shares of Common
Stock , consisting of (i) 3,082,330 outstanding shares of Common Stock, (ii)
28,000 shares of Series A Preferred Stock, as converted into 933,333 shares of
Common Stock, (iii) 10,000 shares of Series B Preferred Stock, as converted into
591,715 shares of Common Stock, (iv) 10,000 shares of Series C Preferred Stock,
as converted into 1,515,152 shares of Common Stock, and (v) warrants to purchase
28,000 shares of Series A Preferred Stock, as exercised and as converted into
933,333 shares of Common Stock.
Page 5 of 11
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This Statement on Schedule 13D/A (this "Statement"), which is being
filed jointly by the Reporting Persons, also constitutes Amendment No. 6 to the
Statement on Schedule 13D, as amended, previously filed by Quilvest with respect
to shares of Class A Common Stock, par value $.01 per share ("Class A Common
Stock"), of Pameco Corporation, a Georgia corporation. The Class A Common Stock
is currently denominated as Common Stock, par value $.01 per share (the "Common
Stock"), of Pameco Corporation, a Delaware corporation (the "Company"). This
Statement amends the previously filed Statements on Schedule 13D filed by the
Reporting Persons. Information in this Statement with respect to Quilvest or its
affiliates has been provided by Quilvest. Information in this Statement with
respect to the other Reporting Persons has been provided by such other Reporting
Persons.
ITEM 1. SECURITY AND ISSUER.
This Statement relates to the Common Stock of the Company, whose
principal executive office is located at 651 Corporate Circle, Suite 200,
Golden, Colorado 80401.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Pursuant to a Securities Purchase Agreement, dated February 18, 2000,
by and among the Company, Quilvest and Littlejohn ("the Securities Purchase
Agreement"), on December 6, 2000 (the "Closing Date"), Littlejohn and Quilvest
purchased from the Company an aggregate of 62,500 shares of the Company's newly
issued Series C Cumulative Pay-in-Kind Convertible Preferred Stock, par value
$1.00 per share ("Series C Preferred Stock"), for a purchase price of $200 per
share (or $12,500,000). Littlejohn paid $10,000,000 in exchange for 50,000
shares of Series C Preferred Stock and Quilvest paid $2,500,000 in exchange for
12,500 shares. The source of the funds used by Littlejohn to purchase the Series
C Preferred Stock was capital contributed by its limited partners. Quilvest's
portion of the purchase price for the Series C Preferred Stock purchased by it
was funded by liquidity made available to Quilvest from QV.
ITEM 4. PURPOSE OF TRANSACTION.
The Reporting Persons acquired beneficial ownership of all of their
shares of Common Stock for investment purposes and for possible resale from time
to time in open market transactions or otherwise as market conditions warrant.
The terms of the Series C Preferred Stock entitle the holders thereof
to convert their shares of Series C Preferred Stock into shares of Common Stock
and to vote as a class with holders of the Common Stock. Shares of the Series C
Preferred Stock are fully convertible into shares of Common Stock at the initial
conversion price of $1.65 per share which is subject to customary adjustments,
including for below market issuances of securities and for dividends,
distributions, stock splits and similar events (the "Conversion Price"). As of
December 6, 2000, each share of Series C Preferred Stock will be convertible
into approximately 121.2 shares of Common Stock (or a total of 7,575,758 shares)
and, as of such date, Littlejohn beneficially owned approximately 89.76% of the
outstanding Common Stock (assuming the exercise and/or conversion of the
Company's securities owned by it only) and Quilvest beneficially owned
approximately 65.1% of the outstanding Common Stock (assuming the exercise
and/or conversion of the Company's securities owned by it only).
The Reporting Persons at any time or from time to time may acquire
additional shares of Common Stock or dispose of shares of Common Stock. Except
as described above, the Reporting Persons have no plans or proposals which
relate to or would result in:
(a) The acquisition by any person of additional securities of the
Company, or the disposition of securities of the Company;
Page 6 of 11
<PAGE>
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Company
or any of its subsidiaries;
(d) Any change in the present Board or management of the Company,
including any plans or proposals to change the number or term of directors or to
fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend
policy of the Company;
(f) Any other material change in the Company's business or corporate
structure;
(g) Changes in the Company's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Company by any person;
(h) Causing a class of securities of the Company to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934; or
(j) Any action similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) After giving effect to the transactions described in Item 3,
Littlejohn, LJ Associates and Mr. Littlejohn beneficially own 112,000 shares of
the Company's Series A Cumulative Pay-in-Kind Preferred Stock, par value $1.00
per share (the "Series A Preferred Stock"), warrants ("Warrants") to purchase
112,000 additional shares of Series A Preferred Stock, 52,500 shares of Series B
Cumulative Pay-in-Kind Convertible Preferred Stock, par value $1.00 per share
(the "Series B Preferred Stock") and 50,000 shares of the Series C Preferred
Stock, and have the power to vote all securities beneficially owned by Quilvest
and Willem F.P. de Vogel (which, in the case of Quilvest, currently includes
Common Stock, Series A Preferred Stock, Series B Preferred Stock, and Series C
Preferred Stock, and, in the case of Willem F.P. de Vogel, currently includes
Common Stock). After giving effect to the transactions described in Item 3,
Quilvest owns 616,667 shares of Common Stock, 28,000 shares of Series A
Preferred Stock, Warrants to purchase an additional 28,000 shares of Series A
Preferred Stock, 10,000 shares of Series B Preferred Stock, and 12,500 shares of
Series C Preferred Stock. All shares of Series A Preferred Stock, Series B
Preferred Stock, and Series C Preferred Stock are fully convertible into shares
of Common Stock. The shares of Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Common Stock and the Warrants beneficially
owned by Littlejohn, LJ Associates and Mr. Littlejohn represent approximately
89.76% of the Common Stock (assuming the exercise and/or conversion of the
Company's securities owned by them only) and the shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Common Stock and
Warrants beneficially owned by Quilvest represent approximately 65.1% of the
Common Stock (assuming the exercise and/or conversion of the Company's
securities owned by it only).
(b) Littlejohn has sole power to vote and direct the vote of any and
all shares of Common Stock beneficially owned by Littlejohn and has the shared
power to vote and direct the vote of any and all shares of Common Stock
beneficially owned by Quilvest and Willem F. P. de Vogel. Littlejohn also has
shared power to dispose of or direct the disposition of any and all shares of
Common Stock beneficially owned by Quilvest and Willem F. P. de Vogel. In
addition, Littlejohn has sole power to dispose of or direct the disposition of
any and all shares of the Common Stock beneficially owned by Littlejohn. See the
Shareholders Agreement attached as Exhibit 4 to the Schedule 13D filed on
February 29, 2000.
Page 7 of 11
<PAGE>
(c) Except as described herein and in Item 3, to the best knowledge of
the Reporting Persons, no transaction in the class of Common Stock was effected
during the past 60 days or since the last filing on Schedule 13D.
(d) Except as set forth in this Item 5, to the best knowledge of the
Reporting Persons, none of the persons named in Item 2(a) beneficially owns any
shares of Common Stock. On the basis of control, through the corporate
relationship of Littlejohn, LJ Associates, and Mr. Littlejohn, as a manager of
LJ Associates, the board of directors of LJ Associates may be deemed to have the
ultimate power to direct the voting or disposition, as well as the application
of dividends from, or the proceeds of the sale of, the shares of the Common
Stock beneficially owned by Littlejohn. Similarly, on the basis of its control,
through an intermediate holding company of Quilvest, the board of directors of
QV may be deemed to have the ultimate power to direct the voting or disposition,
as well as the application of dividends from, or the proceeds of the sale of,
the shares of the Common Stock beneficially owned by Quilvest.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
The Series C Preferred Stock was created pursuant to the Certificate
of Designation of Series C Cumulative Pay-in-Kind Convertible Preferred Shares
of the Company (the "Certificate of Designation"). The Certificate of
Designation provides for the designation, creation, authorization and issuance
of Series C Stock, with a stated value of $200.00 per share at the time of
initial issuance (the "Stated Value," subject to adjustment from time to time to
accurately reflect stock splits, subdivisions or combinations with respect to
the shares of Series C Preferred Stock) and initially consisting of 312,500
shares of Series C Preferred Stock. The Series C Preferred Stock shall, with
respect to dividends, distributions and distributions upon the liquidation,
winding-up or dissolution of the Company, rank on parity with the Series A
Preferred Stock and the Series B Preferred Stock.
For the three-year period (the "Initial Dividend Period") following
the date of issuance of the shares of Series C Preferred Stock (the "Issuance
Date"), the holders of shares of Series C Preferred Stock will be entitled to
receive on each such share, when, as and if declared by the Board, out of funds
of the Company legally available for that purpose, cumulative preferential
dividends, compounding quarterly to the extent unpaid on each March 1, June 1,
September 1 and December 1 (each a "Compounding Date"), commencing on March 1,
2001, and accruing from the date of issuance at the rate of 14% per annum on the
Stated Value of each share of Series C Preferred Stock and of each share of
Series C Preferred Stock to which a holder is entitled as of a particular date,
assuming the declaration of dividends payable in the form of Series C Preferred
Stock (the "Dividend Preferred Shares") then deemed to have been issued (the
"Initial Dividend Rate"). When and if declared by the Board, such dividends will
be payable by issuance of such number of additional shares of Series C Preferred
Stock (including fractional shares) determined by dividing the dollar amount of
the dividend to be paid by the Stated Value on the date such dividend is so
paid.
From and after the Initial Dividend Period, the holders of shares of
Series C Preferred Stock will be entitled to receive on each such share, when,
as and if declared by the Board, out of funds of the Company legally available
for that purpose, cumulative preferential cash dividends, compounding quarterly
to the extent unpaid, on each Compounding Date commencing on December 1, 2003
and accruing thereafter at the rate of 14% per annum on the Stated Value of each
share of Series C Preferred Stock and of each Dividend Preferred Share then
deemed to have been issued, except that the Company may provide written notice
to the holders at least 30 days prior to the end of the Initial Dividend Period,
that such dividends, with respect to periods after the Initial Dividend Period,
shall continue to accrue and be payable in the same manner as during the Initial
Dividend Period.
In addition to the dividends described above, if the Company declares
and pays a dividend on the Common Stock, a holder of shares of Series C
Preferred Stock shall be entitled to receive, concurrently with the payment of
such dividend, an amount equal to 50% of the dividends such holder would have
been entitled to had such holder fully converted the shares of Series C
Preferred Stock into shares of Common Stock immediately prior to the record date
for the distribution. Such dividend distributions will be made pro rata among
the holders of the
Page 8 of 11
<PAGE>
shares of Series C Preferred Stock, holders of the shares of any other class of
capital stock, including without limitation the Series A Preferred Stock and the
Series B Preferred Stock, deemed by the Board to be on a parity with the Series
C Preferred Stock, and holders of Common Stock. All dividends paid with respect
to the Series C Preferred Stock will be made pro rata among the holders based
upon the aggregate number of shares of Series C Preferred Stock held by each
such holder. In the case of shares of Series C Preferred Stock issued on the
Issuance Date, dividends will accrue from such date. In the case of shares of
Series C Preferred Stock issued as a dividend on shares of Series C Preferred
Stock, dividends will accrue from the date on which such shares of Series C
Preferred Stock were issued.
Upon any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Company, or any reduction or decrease in its capital
stock resulting in a distribution of assets to the holders of any class or
series of the Company's capital stock (the date of such occurrence, the
"Liquidation Date"), the Company, out of the assets of the Company available for
distribution, will be required to make the following payments in respect of its
capital stock:
(a) first, payments on any senior securities;
(b) second, on a pro rata basis, (i) payments to holders of shares of
Series C Preferred Stock equal to the greater of (A) the aggregate amount per
share of Series C Preferred Stock, equal to $200.00 plus accrued and unpaid
dividends (whether or not declared and including, without limitation, Dividend
Preferred Shares and the Penalty Amount (if any) (as defined below), subject to
adjustment from time to time to accurately reflect stock splits, subdivisions or
combinations with respect to the Series B Preferred Stock (the "Liquidation
Preference") with respect to the shares of Series C Preferred Stock held by such
holder on the Liquidation Date (including the Dividend Preferred Shares to which
such holder would be entitled as of such date), or (B) the amount which would be
payable to such holder in respect of Common Stock if such holder had been deemed
to have converted all shares of Series C Preferred Stock and all Dividend
Preferred Shares whether or not convertible by the terms hereof, held (or deemed
held) by such holder as of the Liquidation Date into Common Stock immediately
prior to the Liquidation Date; and (ii) due on parity securities (which includes
without limitation the Series A Preferred Stock and Series B Preferred Stock);
and
(c) third, payments on any junior securities.
For purposes hereof, the "Penalty Amount" means the contingent amount that
exists only if the Company has not notified the holders that it elected to
accrue and pay dividends after the Initial Dividend Period in the same manner as
during the Initial Dividend Period and the Company thereafter failed to declare
and pay the applicable cash dividend in full on a relevant Compounding Date, and
which is equal to the difference between the accrued and unpaid dividend
attributable to the relevant Compounding Date and the amount that would have
been the accrued and unpaid dividend attributable to the relevant Compounding
Date had the dividend rate been calculated at 16% per annum, rather than 14% per
annum.
From time to time, on and after the sixth anniversary of the Issuance
Date, the Company has the right to redeem the shares of Series C Preferred Stock
held by a holder at a price per share, payable in cash, equal to 105% of the
Liquidation Preference (the "Redemption Price"). If a legal impediment imposed
by the Delaware General Corporation Law ("DGCL") to the Company's repurchase of
any such shares exist, the Company will be obligated to use its best efforts to
remove or remedy such impediment. In case of redemption of less than all of the
shares of Series C Preferred Stock, the shares of Series C Preferred Stock to be
redeemed would be redeemed on a pro rata basis among all holders.
At any time after the date of issuance and subject to compliance with
applicable law, any holder of shares of Series C Preferred Stock will have the
right to convert any of the then outstanding shares of Series C Preferred Stock
owned by it which have not been previously redeemed into fully paid,
nonassessable shares of Common Stock. For the purpose of conversion, each share
of Series C Preferred Stock will be valued at the Liquidation Preference, which
will be divided by the Conversion Price in effect on the conversion date to
determine the number of shares issuable upon such conversion. The Conversion
Price is subject to adjustments, including for
Page 9 of 11
<PAGE>
below market issuances of securities and for dividends, distributions, stock
splits and similar events. However, no adjustment to the Conversion Price will
reduce the Conversion Price below the then par value per share of the Common
Stock.
Holders of shares of Series C Preferred Stock will vote their shares
of Series C Preferred Stock as a separate class. Subject to compliance with
applicable law, with no further action upon the part of such holder or the
Company, such holder will be entitled to one vote for each share of Common Stock
to which such holder is entitled to receive at such time upon conversion of the
shares of Series C Preferred Stock, whether or not such holder actually has
converted such shares, and will vote such shares together with the Common Stock
as a single class on all matters brought before a vote of the holders of the
Common Stock. The Company will not, without the affirmative vote of the holders
of a majority of the shares of Series C Preferred Stock then outstanding:
(i) authorize, create (by way of reclassification or otherwise)
or issue any securities which are senior to the Series C Preferred Stock as to
dividends, distributions or distributions upon liquidation, winding up or
dissolution of the Company, any parity securities (other than additional shares
of Series C Preferred Stock or other shares of preferred stock issued to the
Purchasers pursuant to the Securities Purchase Agreement) or any obligation or
security convertible into, exchangeable for or evidencing the right to purchase
any senior securities or parity securities;
(ii) amend or otherwise alter its Certificate of Incorporation in
any manner that adversely affects the rights, privileges and preferences of the
Series C Preferred Stock set forth in the Certificate of Designation; or
(iii) take any action requiring a vote of shareholders of the
Company that adversely affects the rights, preferences and privileges of the
Series C Preferred Stock set forth in the Certificate of Designation.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1: Certificate of Designation
Page 10 of 11
<PAGE>
SIGNATURE
---------
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Date: December 7, 2000 Littlejohn Fund II, L.P.
By: Littlejohn Associates II, L.L.C.,
General Partner
By: /s/ Harry F. Weyher III
----------------------------------
Name: Harry F. Weyher III
Title: Manager
Littlejohn Associates II, L.L.C.
By: /s/ Harry F. Weyher III
----------------------------------
Name: Harry F. Weyher III
Title: Manager
/s/ Angus C. Littlejohn, Jr.
-----------------------------------------
Angus C. Littlejohn, Jr., individually
Quilvest American Equity Ltd.
By: /s/ Willem F.P. de Vogel
----------------------------------
Name: Willem F.P. de Vogel
Title: Attorney-in-Fact
Page 11 of 11
