EXHIBIT 4.23
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. IT MAY NOT BE SOLD, OFFERED FOR SALE,
TRANSFERRED OR ASSIGNED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAW OR AN APPLICABLE
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
February 4, 2000
ABLE TELCOM HOLDING CORP.
Common Stock Purchase Warrant
Able Telcom Holding Corp., a Florida corporation (the "COMPANY"),
hereby certifies that for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Halifax Fund, L.P., having an
address at c/o The Palladin Group, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx
00000 ("PURCHASER") or any other Warrant Holder, as defined below, is entitled,
on the terms and conditions set forth below, to purchase from the Company at any
time beginning on the date hereof and ending on the fifth anniversary of the
Closing Date, as defined below, as extended by 1.5 times the number of days
after the Registration Deadline (as defined in the Registration Rights
Agreement) during which there had been no Effective Registration, as defined
below, 133,334 fully paid and nonassessable shares of Common Stock, $.001 par
value, of the Company (the "COMMON Stock"), at a purchase price per share of
Common Stock of $10.75 (the "CONVERSION PRICE"), 115% of the Initial Conversion
Price (as defined in the Articles of Amendment). Such Conversion Price may from
time to time be adjusted pursuant to the terms of the Articles of Amendment and
the Agreement (the "PURCHASE PRICE"), as the same may be adjusted pursuant to
Section 5 herein.
1. DEFINITIONS.
(a) The term "AGREEMENT" shall mean the Series C Convertible
Preferred Stock Purchase Agreement dated as of February 4, 2000, between the
Company and the Investors signatory thereto.
(b) The term "ARTICLES OF AMENDMENT" shall mean the Articles
of Amendment providing for the Series C Preferred Stock dated as of February 4,
2000.
(c) The term "EFFECTIVE REGISTRATION" shall have the meaning
specified in the Agreement.
(d) The term "CLOSING DATE" shall mean February 4, 2000.
(e) The term "REGISTRATION RIGHTS AGREEMENT" shall mean the
Registration Rights Agreement, dated as of February 4, 2000, between the Company
and the Investors signatory thereto.
(f) The term "WARRANT HOLDER" shall mean the Purchaser or
any assignee of all or any portion of this Warrant.
(g) The term "WARRANT SHARES" shall mean the Shares of
Common Stock or other securities issuable upon exercise of this Warrant.
Capitalized terms used but not defined in this Warrant shall have the
meanings specified in the Agreement or the Articles of Amendment.
2. EXERCISE OF WARRANT.
This Warrant may be exercised by the Warrant Holder, in whole or in
part, at any time and from time to time by either of the following methods:
(a) The Warrant Holder may surrender this Warrant, together with the
form of subscription at the end hereof duly executed by such Warrant Holder
("SUBSCRIPTION NOTICE"), at the offices of the Company or any transfer agent for
the Common Stock; together with payment of the aggregate Purchase Price for all
Warrant Shares exercised; or
(b) The Warrant Holder may also exercise this Warrant, in whole or in
part, in a "cashless" or "net-issue" exercise by delivering to the offices of
the Company or any transfer agent for the Common Stock this Warrant, together
with a Subscription Notice specifying the number of Warrant Shares to be
delivered to such Warrant Holder ("DELIVERABLE SHARES") and the number of
Warrant Shares with respect to which this Warrant is being surrendered in
payment of the aggregate Purchase Price for the Deliverable Shares ("SURRENDERED
SHARES"); PROVIDED that the Purchase Price multiplied by the number of
Deliverable Shares shall not exceed the value of the Surrendered Shares; and
PROVIDED, FURTHER, that the sum of the number of Deliverable Shares and the
number of Surrendered Shares so specified shall not exceed the aggregate number
of Warrant Shares represented by this Warrant. For the purposes of this
provision, each Warrant Share as to which this Warrant is surrendered will be
attributed a value equal to the Fair Market Value (as defined below) of the
Warrant Share minus the Purchase Price of the Warrant Share (the "SPREAD"). The
number of Deliverable Shares shall be equal to (i) the number of Surrendered
Shares multiplied by the Spread; divided by (ii) the Purchase Price of this
Warrant on the date of exercise.
In the event that the Warrant is not exercised in full, the number of
Warrant Shares shall be reduced by the number of such Warrant Shares for which
this Warrant is exercised and/or surrendered, and the Company, at its expense,
shall within three (3) Trading Days (as defined below) issue and deliver or upon
the order of Warrant Holder a new Warrant of like tenor in the
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name of Warrant Holder or as Warrant Holder (upon payment by Warrant Holder of
any applicable transfer taxes) may request, reflecting such adjusted Warrant
Shares.
3. DELIVERY OF STOCK CERTIFICATES.
(a) Subject to the terms and conditions of this Warrant, as
soon as practicable after the exercise of this Warrant in full or in part, and
in any event within three (3) Trading Days thereafter, the Company shall
transmit the certificates (together with any other stock or other securities or
property to which Warrant Holder is entitled upon exercise) by messenger or
overnight delivery service to reach the address designated by such holder within
three (3) Trading Days after the receipt of the Subscription Notice ("T+3"). If
such certificates are not received by the Warrant Holder within T+3, then the
Warrant Holder will be entitled to revoke and withdraw its exercise of its
Warrant at any time prior to its receipt of those certificates.
In lieu of delivering physical certificates
representing the Warrant Shares deliverable upon exercise of Warrants provided
the Company's transfer agent is participating in the Depository Trust Company
("DTC") Fast Automated Securities Transfer ("FAST") program, upon request of the
Warrant Holder, the Company shall use its Best Efforts (as defined in the
Articles of Amendment) to cause its transfer agent to electronically transmit
the Warrant Shares issuable upon exercise to the Warrant Holder, by crediting
the account of Warrant Holder's prime broker with DTC through its Deposit
Withdrawal Agent Commission ("DWAC") system. The time periods for delivery
described above shall apply to the electronic transmittals through the DWAC
system. The parties agree to coordinate with DTC to accomplish this objective.
The exchange pursuant to Section 3 shall be deemed to have been made immediately
prior to the close of business on the date of the Subscription Notice. The
person or persons entitled to receive the Warrant Shares issuable upon such
exercise shall be treated for all purposes as the record holder or holders of
such Common Shares at the close of business on the date of the Subscription
Notice.
The term "TRADING DAY" means (x) if the Common
Stock is listed on the New York Stock Exchange or the American Stock Exchange, a
day on which there is trading on such stock exchange, (y) if the Common Stock is
not listed on either of such stock exchanges but sale prices of the Common Stock
are reported on an automated quotation system, a day on which trading is
reported on the principal automated quotation system on which sales of the
Common Stock are reported, or (z) if the foregoing provisions are inapplicable,
a day on which quotations are reported by National Quotation Bureau
Incorporated.
(b) This Warrant may not be exercised as to fractional
shares of Common Stock. In the event that the exercise of this Warrant, in full
or in part, would result in the issuance of any fractional share of Common
Stock, then in such event the Warrant Holder shall be entitled to cash equal to
the Fair Market Value (as defined herein) of such fractional share. For purposes
of this Warrant, "FAIR MARKET VALUE" shall equal the closing trading price of
the Common Stock on the Approved Market which is the principal trading exchange
or market for the Common Stock (the "PRINCIPAL MARKET") on the date of
determination or, if the Common Stock is not listed or admitted to trading on
any Approved Market, the average of the closing bid and asked prices on the
over-the-counter market as furnished by any New York Stock Exchange member firm
reasonably selected from time to time by the Company for that purpose and
reasonably acceptable to the
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Warrant Holder, or, if the Common Stock is not listed or admitted to trading on
any Approved Market or traded over-the-counter and the average price cannot be
determined as contemplated above, the Fair Market Value of the Common Stock
shall be as reasonably determined in good faith by the Company's Board of
Directors with the concurrence of the Warrant Holder.
4. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
(a) The Company shall comply with its obligations under the
Registration Rights Agreement with respect to the Warrant Shares, including,
without limitation, the Company's obligation to have filed and declared and
maintained effective a registration statement registering the Warrant Shares
under the Securities Act of 1933, as amended (the "ACT").
(b) The Company shall take all necessary action and
proceedings as may be required and permitted by applicable law, rule and
regulation, including, without limitation, the notification of the Principal
Market, for the legal and valid issuance of this Warrant and the Warrant Shares
to the Warrant Holder under this Warrant.
(c) From the date hereof through the last date on which this
Warrant is exercisable, the Company shall take all steps necessary to ensure
that the Common Stock remains listed on the Principal Market.
(d) The Warrant Shares, when issued in accordance with the
terms hereof, will be duly authorized and, when paid for or issued in accordance
with the terms hereof, shall be validly issued, fully paid and non-assessable.
The Company has authorized and reserved for issuance to Warrant Holder the
requisite number of shares of Common Stock to be issued pursuant to this
Warrant.
(e) The Company shall at all times reserve and keep
available, solely for issuance and delivery as Warrant Shares hereunder, 105% of
such number of shares of Common Stock as shall from time to time be issuable
hereunder.
(f) With a view to making available to the Warrant Holder
the benefits of Rule 144 promulgated under the Act and any other rule or
regulation of the Securities and Exchange Commission ("SEC") that may at any
time permit Warrant Holder to sell securities of the Company to the public
without registration, the Company agrees to use its Best Efforts to:
i) make and keep public information available, as
those terms are understood and defined in Rule 144, at all
times;
ii) file with the SEC in a timely manner all
reports and other documents required of the Company under
the Act and the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"); and
iii) furnish to any Warrant Holder forthwith upon
request a written statement by the Company that it has
complied with the reporting requirements of Rule 144 and of
the Act and the Exchange Act, a copy of
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the most recent annual or quarterly report of the Company,
and such other reports and documents so filed by the Company
as may be reasonably requested to permit any such Warrant
Holder to take advantage of any rule or regulation of the
SEC permitting the selling of any such securities without
registration.
5. REPRESENTATIONS AND COVENANTS OF THE PURCHASER.
The Purchaser shall not resell Warrant Shares, unless such
resale is pursuant to an effective registration statement under the Act or
pursuant to an applicable exemption from such registration requirements.
6. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The
number of and kind of securities purchasable upon exercise of this Warrant and
the Purchase Price shall be subject to adjustment from time to time as follows:
(a) SUBDIVISIONS, COMBINATIONS AND OTHER ISSUANCES. If the
Company shall at any time after the date hereof but prior to the expiration of
this Warrant subdivide its outstanding securities as to which purchase rights
under this Warrant exist, by split-up, spin-off, or otherwise, or combine its
outstanding securities as to which purchase rights under this Warrant exist, the
number of Warrant Shares as to which this Warrant is exercisable as of the date
of such subdivision, split-up, spin-off or combination shall forthwith be
proportionately increased in the case of a subdivision, or proportionately
decreased in the case of a combination. Appropriate proportional adjustments
(decrease in the case of subdivision, increase in the case of combination) shall
also be made to the Purchase Price payable per share, so that the aggregate
Purchase Price payable for the total number of Warrant Shares or Warrants
purchasable under this Warrant as of such date shall remain the same as it would
have been before such subdivision or combination.
(b) STOCK DIVIDEND. If at any time after the date hereof the
Company declares a dividend or other distribution on Common Stock payable in
Common Stock or other securities or rights convertible into or exchangeable for
Common Stock ("COMMON STOCK EQUIVALENTS") without payment of any consideration
by holders of Common Stock for the additional shares of Common Stock or the
Common Stock Equivalents (including the additional shares of Common Stock
issuable upon exercise or conversion thereof), then the number of shares of
Common Stock for which this Warrant may be exercised shall be increased as of
the record date (or the date of such dividend distribution if no record date is
set) for determining which holders of Common Stock shall be entitled to receive
such dividends, in proportion to the increase in the number of outstanding
shares (and shares of Common Stock issuable upon conversion of all such
securities convertible into Common Stock) of Common Stock as a result of such
dividend, and the Purchase Price shall be proportionately reduced so that the
aggregate Purchase Price for all the Warrant Shares issuable hereunder
immediately after the record date (or on the date of such distribution, if
applicable), for such dividend shall equal the aggregate Purchase Price so
payable immediately before such record date (or on the date of such
distribution, if applicable).
(c) OTHER DISTRIBUTIONS. If at any time after the date
hereof the Company distributes to holders of its Common Stock, other than as
part of its dissolution, liquidation or the
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winding up of its affairs, any shares of its capital stock, any evidence of
indebtedness or any of its assets (other than Common Stock), then the number of
Warrant Shares for which this Warrant is exercisable shall be increased to
equal: (i) the number of Warrant Shares for which this Warrant is exercisable
immediately prior to such event, (ii) multiplied by a fraction, (A) the
numerator of which shall be the Fair Market Value per share of Common Stock on
the record date for the dividend or distribution, and (B) the denominator of
which shall be the Fair Market Value price per share of Common Stock on the
record date for the dividend or distribution minus the amount allocable to one
share of Common Stock of the value (as jointly determined in good faith by the
Board of Directors of the Company and the Warrant Holder) of any and all such
evidences of indebtedness, shares of capital stock, other securities or
property, so distributed. The Purchase Price shall be reduced to equal: (i) the
Purchase Price in effect immediately before the occurrence of any such event
(ii) multiplied by a fraction, (A) the numerator of which is the number of
Warrant Shares for which this Warrant is exercisable immediately before the
adjustment, and (B) the denominator of which is the number of Warrant Shares for
which this Warrant is exercisable immediately after the adjustment.
(d) MERGER, ETC. If at any time after the date hereof there
shall be a merger or consolidation of the Company with or into or a transfer of
all or substantially all of the assets of the Company to another entity, then
the Warrant Holder shall be entitled to receive upon or after such transfer,
merger or consolidation becoming effective, and upon payment of the Purchase
Price then in effect, the number of shares or other securities or property of
the Company or of the successor corporation resulting from such merger or
consolidation, which would have been received by Warrant Holder for the shares
of stock subject to this Warrant had this Warrant been exercised just prior to
such transfer, merger or consolidation becoming effective or to the applicable
record date thereof, as the case may be. The Company will not merge or
consolidate with or into any other corporation, or sell or otherwise transfer
its property, assets and business substantially as an entirety to another
corporation, unless the corporation resulting from such merger or consolidation
(if not the Company), or such transferee corporation, as the case may be, shall
expressly assume, by supplemental agreement reasonably satisfactory in form and
substance to the Warrant Holder, the due and punctual performance and observance
of each and every covenant and condition of this Warrant to be performed and
observed by the Company.
(e) RECLASSIFICATION, ETC. If at any time after the date
hereof there shall be a reorganization or reclassification of the securities as
to which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, then the Warrant Holder
shall thereafter be entitled to receive upon exercise of this Warrant, during
the period specified herein and upon payment of the Purchase Price then in
effect, the number of shares or other securities or property resulting from such
reorganization or reclassification, which would have been received by the
Warrant Holder for the shares of stock subject to this Warrant had this Warrant
at such time been exercised.
(f) PURCHASE PRICE ADJUSTMENT. In the event that within
twelve (12) months of the Closing Date the Company issues or sells any Common
Stock or securities which are convertible into or exchangeable for its Common
Stock or any convertible securities, or any warrants or other rights to
subscribe for or to purchase or any options for the purchase of its Common Stock
or any such convertible securities (other than (i) shares or options issued or
which
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may be issued to employees, directors or consultants, or pursuant to the
Company's employee or director option plans, (ii) shares issued upon exercise of
warrants issued prior to the date hereof to Xxxx Xxxxxxx Mutual Life Insurance
Co. and its affiliates, Xxxx Xxxx and the holders of the Series A Preferred
Stock, (iii) shares issued upon exercise of warrants issued prior to the date
hereof in conjunction with the Company's issuance of Series B Preferred Stock
and equity awards and options to WorldCom Network Services, Inc., and (iv)
shares issued upon exercise of options, warrants or rights outstanding on the
date of the Agreement and listed in any of the Company's reports filed under the
Exchange Act during the previous 12 months) at an effective purchase price per
share which is less than the greater of the Purchase Price then in effect or the
Fair Market Value (as defined in Section 3(b) above) of the Common Stock on the
Trading Day next preceding such issue or sale, then in each such case, the
Purchase Price in effect immediately prior to such issue or sale shall be
reduced effective concurrently with such issue or sale to an amount determined
by multiplying the Purchase Price then in effect by a fraction, (x) the
numerator of which shall be the sum of (1) the number of shares of Common Stock
outstanding immediately prior to such issue or sale, plus (2) the number of
shares of Common Stock which the aggregate consideration received by the Company
for such additional shares would purchase at such Fair Market Value or, Purchase
Price as the case may be, then in effect; and (y) the denominator of which shall
be the number of shares of Common Stock of the Company outstanding immediately
after such issue or sale.
For the purposes of the foregoing adjustment, in the case of
the issuance of any convertible securities, warrants, options or other rights to
subscribe for or to purchase or exchange for, shares of Common Stock
("CONVERTIBLE SECURITIES"), the maximum number of shares of Common Stock
issuable upon exercise, exchange or conversion of such Convertible Securities
shall be deemed to be outstanding, PROVIDED that no further adjustment shall be
made upon the actual issuance of Common Stock upon exercise, exchange or
conversion of such Convertible Securities.
The number of shares which may be purchased hereunder shall
be increased proportionately to any reduction in Purchase Price pursuant to this
paragraph 6(f), so that after such adjustments the aggregate Purchase Price
payable hereunder for the increased number of shares shall be the same as the
aggregate Purchase Price in effect just prior to such adjustments.
In the event of any such issuance for a consideration which
is less than such Fair Market Value and also less than the Purchase Price then
in effect, than there shall be only one such adjustment by reason of such
issuance, such adjustment to be that which results in the greatest reduction of
the Purchase Price computed as aforesaid.
7. NO IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Warrant Holder
against impairment. Without limiting the generality of the foregoing, the
Company (a) will not increase the par value of any Warrant Shares above the
amount payable therefor on such exercise, and (b) will take all such action as
may be reasonably necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares on the exercise of
this Warrant.
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8. NOTICE OF ADJUSTMENTS. Whenever the Purchase Price or number
of Shares purchasable hereunder shall be adjusted pursuant to Section 5 hereof,
the Company shall execute and deliver to the Warrant Holder a certificate
setting forth, in reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment was calculated and
the Purchase Price and number of shares purchasable hereunder after giving
effect to such adjustment, and shall cause a copy of such certificate to be
mailed (by first class mail, postage prepaid) to the Warrant Holder.
9. RIGHTS AS SHAREHOLDER. Prior to exercise of this Warrant,
the Warrant Holder shall not be entitled to any rights as a shareholder of the
Company with respect to the Warrant Shares, including (without limitation) the
right to vote such shares, receive dividends or other distributions thereon or
be notified of shareholder meetings. However, in the event of any taking by the
Company of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend (other
than a cash dividend) or other distribution, any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, the Company shall mail to
each Warrant Holder, at least ten (10) Trading Days prior to the date specified
therein, a notice specifying the date on which any such record date is to be
taken for the purpose of such dividend, distribution or right, and the amount
and character of such dividend, distribution or right.
10. LIMITATION ON EXERCISE. Notwithstanding anything to the
contrary contained herein, this Warrant may not be exercised by the Warrant
Holder to the extent that, after giving effect to Warrant Shares to be issued
pursuant to a Subscription Notice, the total number of shares of Common Stock
deemed beneficially owned by such holder (other than by virtue of ownership of
this Warrant, or ownership of other securities that have limitations on the
holder's rights to convert or exercise similar to the limitations set forth
herein), together with all shares of Common Stock deemed beneficially owned by
the holder's "affiliates" (as defined in Rule 144 of the Act) that would be
aggregated for purposes of determining whether a group under Section 13(d) of
the Exchange Act exists, would exceed the Warrant Holder's Restricted Ownership
Percentage specified on Schedule I to the Agreement; PROVIDED that (w) each
Warrant Holder shall have the right at any time and from time to time to reduce
its Restricted Ownership Percentage immediately upon notice to the Company or in
the event of a Change in Control Transaction, (x) each Warrant Holder shall have
the right at any time and from time to time to increase its Restricted Ownership
Percentage or otherwise waive in whole or in part the restrictions of this
Section 10 upon 61 days' prior notice to the Company or immediately in the event
of a Change in Control Transaction, (y) each Warrant Holder can make subsequent
adjustments pursuant to (w) or (x) any number of times from time to time (which
adjustment shall be effective immediately if it results in a decrease in the
Restricted Ownership Percentage or shall be effective upon 61 days' prior
written notice or immediately in the event of a Change in Control Transaction if
it results in an increase in the Restricted Ownership Percentage) and (z) each
Warrant Holder may eliminate or reinstate this limitation at any time and from
time to time (which elimination will be effective upon 61 days' prior notice and
which reinstatement will be effective immediately) PROVIDED, FURTHER, that the
Warrant Holder shall not be permitted to waive any provision of this Section 10
to the extent that, if the Warrant Holder were to acquire additional shares of
Common Stock pursuant to such waiver, the limitation set forth in the first
sentence of this Section 10 would be exceeded if its Restricted
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Ownership Percentage were 9.99%. Without limiting the foregoing, in the event of
a Change in Control Transaction, any holder may reinstate immediately (in whole
or in part) the requirement that any increase in its Restricted Ownership
Percentage be subject to 61 days' prior written notice, notwithstanding such
Change in Control Transaction, without imposing such requirement on, or
otherwise changing such holder's rights with respect to, any other Change in
Control Transaction. For this purpose, any material modification of the terms of
a Change in Control Transaction will be deemed to create a new Change in Control
Transaction. The term "DEEMED BENEFICIALLY OWNED" as used in this Warrant shall
include all shares that might be deemed beneficially owned by reason of the
convertibility of the Preferred Shares. A "CHANGE IN CONTROL TRANSACTION" will
be deemed to have occurred upon the earlier of the announcement or consummation
of a transaction or series of transactions (other than the Merger) involving (x)
any consolidation or merger of the Company with or into any other corporation or
other entity or person (whether or not the Company is the surviving
corporation), or any other corporate reorganization or transaction or series of
related transactions in which in excess of 50% of the Company's voting power is
transferred through a merger, consolidation, tender offer or similar
transaction, or (y) in excess of 50% of the Corporation's Board of Directors
consists of directors not nominated by the prior Board of Directors of the
Company, or (z) any person (as defined in Section 13(d) of the Exchange Act,
together with its affiliates and associates (as such terms are defined in Rule
405 under the Act), beneficially owns or is deemed to beneficially own (as
described in Rule 13d-3 under the Exchange Act without regard to the 60-day
exercise period) in excess of 50% of the Company's voting power. The delivery of
a Subscription Notice by the Warrant Holder shall be deemed a representation by
such holder that it is in compliance with this paragraph.
11. REPLACEMENT OF WARRANT. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction of this
Warrant, on delivery of an indemnity agreement or security reasonably
satisfactory in form and amount to the Company or, in the case of any such
mutilation, on surrender and cancellation of such Warrant, the Company at its
expense promptly will execute and deliver, in lieu thereof a new Warrant of like
tenor.
12. SPECIFIC PERFORMANCE; CONSENT TO JURISDICTION; CHOICE OF LAW
(a) The Company and the Warrant Holder acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Warrant were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall he entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Warrant and to enforce specifically the terms and provisions hereof, this
being in addition to any other remedy to which either of them may be entitled by
law or equity.
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(b) EACH OF THE COMPANY AND THE WARRANT HOLDER (I) HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL
COURTS LOCATED IN NEW YORK COUNTY, NEW YORK FOR THE PURPOSES OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS WARRANT AND (II) HEREBY WAIVES,
AND AGREES NOT TO ASSERT IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT
IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURT, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF
THE SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH OF THE COMPANY AND THE WARRANT
HOLDER CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING
BY MAILING A COPY THEREOF TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO
IT UNDER THIS WARRANT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND
SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING IN THIS PARAGRAPH
SHALL AFFECT OR LIMIT ANY RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY APPLICABLE LAW.
(c) THE COMPANY AND THE WARRANT HOLDER IRREVOCABLY WAIVE
THEIR RIGHT TO TRIAL BY JURY.
(d) THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO SUCH STATE'S PRINCIPLES OF CONFLICT OF LAWS) APPLICABLE TO CONTRACTS
EXECUTED AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE AND, WHERE APPLICABLE,
FEDERAL LAW.
13. ENTIRE AGREEMENT; AMENDMENTS. This Warrant, the Exhibits hereto
and the provisions contained in the Agreement or the Registration Rights
Agreement or the Articles of Amendment contain the entire understanding of the
parties with respect to the matters covered hereby and thereby and, except as
specifically set forth herein and therein, neither the Company nor the Warrant
Holder makes any representation, warranty, covenant or undertaking with respect
to such matters. No provision of this Agreement may be waived or amended other
than by a written instrument signed by the party against whom enforcement of any
such amendment or waiver is sought.
14. NOTICES. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be effective (a) upon hand
delivery or delivery by telex (with correct answer back received), telecopy or
facsimile at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such
communications shall be:
to the Company:
Able Telcom Holding Corp.
10
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxx, President and
Chief Executive Officer
Facsimile: (000) 000-0000
with copies to:
Paul, Hastings, Xxxxxxxx & Xxxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
to the Warrant Holder:
Halifax Fund, L.P.
c/o The Palladin Group, L.P.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with copies to:
Xxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: X. Xxxxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Either party hereto may from time to time change its address for notices under
this Section 14 by giving at least ten (10) days' prior written notice of such
changed address to the other party hereto.
15. MISCELLANEOUS. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of such change, waiver, discharge
or termination is sought. The headings in this Warrant are for purposes of
reference only, and shall not limit or otherwise affect any of the terms hereof.
The invalidity or unenforceability of any provision hereof shall in no way
affect the validity or enforceability of any other provision.
16. ASSIGNMENT. This Warrant may be transferred or assigned, in
whole or in part, at any time and from time to time by the then Warrant Holder
by submitting this Warrant to the Company together with a duly executed
Assignment in substantially the form and substance of the
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Form of Assignment which accompanies this Warrant and, upon the Company's
receipt hereof, and in any event, within three (3) business days thereafter, the
Company shall issue a Warrant to the Warrant Holder to evidence that portion of
this Warrant, if any as shall not have been so transferred or assigned;
PROVIDED, HOWEVER, that such transfer or assignment shall be registered or
qualified under all applicable securities laws, or otherwise exempt therefrom.
17. SUCCESSORS AND ASSIGNS. This Warrant shall be binding upon
any entity succeeding to the Company by merger, consolidation or acquisition of
all or substantially all of the Company's assets.
18. FORCE MAJEURE. The Company shall not be liable for any
default or delay in the performance of its obligations under this Warrant if and
only to the extent such delay or default is caused by Force Majeure; PROVIDED,
HOWEVER, that no event of Force Majeure shall excuse any such default or delay
for longer than an aggregate of thirty (30) days in any calendar year.
[SIGNATURE PAGE FOLLOWS]
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Dated: ABLE TELCOM HOLDING CORP.
By:
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
Its
(SIGNATURE PAGE OF ABLE TELCOM HOLDING CORP. COMMON STOCK PURCHASE WARRANT)
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(SUBSCRIPTION NOTICE)
14
FORM OF WARRANT EXERCISE
(TO BE SIGNED ONLY ON EXERCISE OF WARRANT)
TO: ABLE TELCOM HOLDING CORP.
ATTN: SECRETARY
The undersigned, the holder of the within Warrant, hereby irrevocably
elects to exercise this Warrant:
_____ (A) for, and to purchase thereunder, ______ shares of Common
Stock of Able Telcom Holding Corp., a Florida corporation
(the "Common Stock"), and herewith, or by wire transfer,
makes payment of $________ therefor; or
_____ (B) in a "cashless" or "net-issue exercise" for, and to
purchase thereunder , ______ shares of Common Stock, and
herewith makes payment therefor with Surrendered Warrant
Shares.
The undersigned requests that the certificates for such shares be issued
in the name of, and
_____ (A) delivered to ____________, whose address is _____________;
or
_____ (B) electronically transmitted and credited to the account of
__________, undersigned's prime broker (Account No. _____)
with Depository Trust Company through its Deposit
Withdrawal Agent Commission system.
Dated:
(Signature must conform to name of holder
as specified on the face of the Warrant)
_________________________________________
(Address)
Tax Identification Number: ________
FORM OF ASSIGNMENT
(TO BE SIGNED ONLY ON TRANSFER OF WARRANT)
For value received, the undersigned hereby sells, assigns, and transfers unto
_____________ the right represented by the within Warrant to purchase shares of
Common Stock of ABLE TELCOM HOLDING CORP., a Florida corporation, to which the
within Warrant relates, and appoints ____________ Attorney to transfer such
right on the books of ABLE TELCOM HOLDING CORP., a Florida corporation, with
full power of substitution of premises.
Dated: _____________
(Signature must conform to name of holder
as specified on the face of the Warrant)
_________________________________________
(Address)
Signed in the presence of:
___________________________________
