EXHIBIT 4.12
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.
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June 30, 1998
ABLE TELCOM HOLDING CORP.
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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, Palladin Partners I, L.P., having
an address at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, 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
hereof and ending on the fifth anniversary of the Closing Date, as defined
below, as extended 1.5 times the number of days between the 120th day following
the Closing Date and such anniversary on which there had been no Effective
Registration, as defined below, 113,750 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 $19.80 (the "Conversion Price").
Such Conversion Price may from time to time be adjusted pursuant to the terms of
the Articles of Amendment (the "PURCHASE PRICE"), as the same may be adjusted
pursuant to Section 6 herein.
1. DEFINITIONS.
(a) The term "ARTICLES OF AMENDMENT" shall mean the Articles of
Amendment providing for the Series B Preferred Stock dated as of June 26, 1998.
(b) The term "EFFECTIVE REGISTRATION" shall mean that (a) all
registration obligations of the Company pursuant to the Registration Rights
Agreement have been satisfied, (b) such registration is not subject to any
suspension or stop order, (c) the prospectus for each of the Warrant Shares
issuable upon exercise of the Warrants is current, (d) the Warrant Shares are
listed for trading on one of the Approved Markets (as defined in the
Registration Rights Agreement) and such trading has not been suspended for any
reason, (e) none of the Company or any direct or indirect subsidiary of the
Company is subject to any bankruptcy, insolvency or similar proceeding, and (f)
no Interfering Event (as defined in the Registration Rights Agreement) exists.
(c) The term "CLOSING DATE" shall mean June 30, 1998.
(d) The term "REGISTRATION RIGHTS AGREEMENT" shall mean the
Registration Rights Agreement, dated as of June 30, 1998, between the Company
and the Investors signatory thereto.
(e) The term "WARRANT HOLDER" shall mean the Purchaser or any assignee
of all or any portion of this Warrant.
(f) 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 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 fair market value of the Common
Stock 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. ~
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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 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 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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4. REPURCHASE OF WARRANT SHARES AT THE OPTION OF THE COMPANY. At any
time and from time to time, from the date hereof until all Warrant Shares
represented by this Warrant have been exercised, provided that the Company at
such time is not in breach of the provisions of this Warrant and the
Registration Rights Agreement, and that there is Effective Registration the
Company may purchase from the Holder the Warrant at a purchase price per share
equal to (i) $35.00 times (ii) a number equal to the number of Warrant Shares
remaining exercisable pursuant to the Warrant, subject to adjustments provided
in Section 6 hereof (the "Repurchase Price"). Any such repurchase by the Company
shall be preceded by a "Notice of Repurchase" sent by the Company to the Holder
of the Warrant Shares to be repurchased. The Repurchase Price shall be paid by
the Company to the Holder, or such Holder's designee, in cash 30 days following
the receipt by the Holder of the Notice of Repurchase. Until such 30th day
following receipt of the Notice of Repurchase, the Holder's right to exercise
this Warrant pursuant to Section 2 hereof shall remain unaffected.
5. (A) 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 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, 150% 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;
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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.
(B) 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 REPURCHASE PRICE AND NUMBER OF
SHARES. The number of and kind of securities purchasable upon exercise of this
Warrant and the Purchase Price and the Repurchase 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 and Repurchase Price payable per share, so
that the aggregate Purchase Price or Repurchase 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 and the
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Xxxxxxxxxx Price shall be proportionately reduced so that the aggregate Purchase
Price and Repurchase 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 or
Repurchase 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 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. The Repurchase Price shall be
reduced to equal: (i) $35.00 (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 which 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
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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 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 the
warrant issued prior to the date hereof to Xxxx Xxxxxxx Mutual Life Insurance
Co. and its affiliates, (iii) shares issued upon exercise of warrants issued
prior to the date hereof in conjunction with the Company's issuance of Series A
Preferred Stock, 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 minimum 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.
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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.
8. NOTICE OF ADJUSTMENTS. Whenever the Purchase Price, Repurchase
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 or the Repurchase 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 totd1 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
holders "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 4.99% of the outstanding Common Stock
("Restricted Ownership Percentage"); 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
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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). 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 exclude shares
that might otherwise 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 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 doing 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:
-10-
to the Company:
Able Telcom Holding Corp.
0000 Xxxxx Xxxxx
Xxxxx 0000
Xxxx Xxxx Xxxxx, XX. 00000
Attention:
Facsimile:
with copies to:
Gunster, Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A.
Xxxxxxxx Point, Suite 500 East
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
to the Warrant Holder:
Palladin Partners I, L.P.
c/o The Palladin Group, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
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 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.
-11-
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]
-12-
Dated: JUNE 30, 1998 ABLE TELCOM HOLDING CORP.
---------------
By: /S/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
[CORPORATE SEAL]
Attest:
By: /S/ ILLEGIBLE
---------------------------
Its Chief Financial Officer
(SIGNATURE PAGE OF ABLE TELCOM HOLDING CORP. COMMON STOCK PURCHASE WARRANT)
-13-
(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 $_______ therefore, or
___(B) in a "cashless" or "net-issue exercise" for, and to purchase
thereunder, _____ shares of Common Stock, and herewith makes
payment therefore 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: _________________
-14-
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:
______________________________________
