EXHIBIT 4.17
EXECUTION VERSION
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.
[First Warrants]
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, [_____________________], having an address at
c/o The Palladin Group, L.P.195 Xxxxxxxxx Xxxxxx, Xxxxxxxxx XX 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 of determination of the Average Price and ending thirty
(30) days thereafter, 66,246 fully paid and nonassessable shares of Common
Stock, $.001 par value, of the Company (the "COMMON STOCK"), at the Purchase
Price (hereinafter defined) per share, as the same may be adjusted pursuant to
Section 6 herein.
1. DEFINITIONS.
(a) The term "AGREEMENT" shall mean the Securities Exchange
Agreement dated as of February 4, 2000, between the Company and the Holders
signatory thereto.
(b) The term "BEST EFFORTS" means as to any party obligated
to use its Best Efforts to accomplish a particular objective that the obligated
party is required to make diligent, good faith, prompt, substantial and
persistent efforts as a prudent person desiring to achieve the applicable
objective would use in order to ensure that such objective is achieved as
expeditiously as possible.
(c) The term "PURCHASE PRICE" shall mean the product of
(i)(A) the Average Price (which shall not be greater than $9.50) multiplied by
(B) that number of shares of Common Stock issued to the Holders pursuant to
Section 1.1(a) of the Agreement, plus the number of shares to be issued pursuant
to this Warrant, minus (ii) the Remaining Redemption Price, divided by (iii) the
number of shares to be issued pursuant to this Warrant; provided, however, in
the event the Average Price is less than the Closing Price, the Purchase Price
shall mean $0.01.
EXECUTION VERSION
(d) The term "WARRANT HOLDER" shall mean the Purchaser or
any assignee of all or any portion of this Warrant.
(e) 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.
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 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 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
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EXECUTION VERSION
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 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 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 (an "APPROVED MARKET" is the New York Stock Exchange or the
American Stock Exchange or the Nasdaq National 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 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.
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EXECUTION VERSION
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 use its Best Efforts to 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 use its Best Efforts to take all steps
necessary to insure 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 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.
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EXECUTION VERSION
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 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
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EXECUTION VERSION
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 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.
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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EXECUTION VERSION
8. NOTICE OF ADJUSTMENTS. Whenever the Purchase Price or number
of Shares purchasable hereunder shall be adjusted pursuant to Section 6 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 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 4.9% (the "4.9% LIMIT"); PROVIDED that (w)
each Warrant Holder shall have the right at any time and from time to time to
reduce the 4.9% Limit 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 the 4.9% Limit 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 4.9% Limit 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 4.9% Limit) 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 the 4.9% Limit 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 4.9% Limit,
notwithstanding such Change in Control Transaction, without imposing such
7
EXECUTION VERSION
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 exclude shares that might otherwise be deemed beneficially
owned by reason of the redeemability 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.
8
EXECUTION VERSION
(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
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 Securities Exchange Agreement or the
Registration Rights Agreement 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.
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxx 000
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EXECUTION VERSION
Xxxxxxx, XX. 00000
Attn: President
Facsimile: (000) 000-0000
to the Warrant Holder:
c/o The Palladin Group, L.P.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx XX 00000
Attn: Xxxxxx X. Xxxxxxx
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 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 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.
[SIGNATURE PAGE FOLLOWS]
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EXECUTION VERSION
Dated: February 4, 2000 ABLE TELCOM HOLDING CORP.
By:
--------------------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
Its
(SIGNATURE PAGE OF ABLE TELCOM HOLDING CORP. COMMON STOCK PURCHASE WARRANT)
11
EXECUTION VERSION
(SUBSCRIPTION NOTICE)
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:__________________
12
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:
____________________________________________
EXECUTION VERSION
EXHIBIT D
COMMON STOCK PURCHASE WARRANT
