EXHIBIT 4.15
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT dated as of February 17, 1999 (the
"Agreement") by and between Halifax Fund L.P., The Gleneagles Fund Company,
Palladin Overseas Fund Limited, Colonial Penn Life Insurance Company, Palladin
Securities L.L.C. and Palladin Partners I, L.P. (collectively "Sellers") and
Cotton Communications, Inc. ("Purchaser").
WHEREAS the Sellers have entered into that certain Convertible
Preferred Stock Purchase Agreement with Able Telcom Holding Corp. (the
"Company"), dated June 26, 1998, including all exhibits thereto (the "Purchase
Agreement"); and pursuant thereto, on June 30, 1998, the Sellers acquired 2,000
shares of Series B Preferred Stock (the "Preferred Shares") as well as warrants
(the "Warrants") to purchase up to 625,000 shares of Able Telcom Holding Corp.
common stock, par value $0.001 per share (the "Common Stock"), and currently own
1,764 Preferred Shares;
WHEREAS, immediately after consummation of the transactions
contemplated hereby, Sellers may convert 404 Preferred Shares at a conversion
price of $3.5138 or such lesser price, if any, as may be in effect at the time
of conversion;
WHEREAS, the Purchaser desires to purchase 1360 Preferred Shares; and
WHEREAS, the Sellers desire to sell 1360 Preferred Shares to Purchaser;
NOW, THEREFORE, intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE 1.
PURCHASE AND SALE OF THE PREFERRED SHARES
1.1 PURCHASE AND SALE OF THE SHARES. At the Preferred Closing (as
defined below):
(a) The Purchaser will purchase from the Sellers, and the
Sellers will sell to the Purchaser, the 1360 Preferred Shares for a purchase
price of $5772.56 per Preferred Share for a total purchase price of
$7,850,681.60 (the "Purchase Price");
(b) The Sellers will deliver to the Purchaser the Preferred
Shares;
(c) The Purchaser will deliver to an account designated by the
Sellers, in immediately available funds, the amount of the Purchase Price; and
(d) The Sellers will provide the Purchasers with a proxy to
vote all shares of Common Stock Beneficially Owned by the Sellers.
The closing of the purchase and sale of the Preferred Shares (the
"Preferred Closing"), shall
take place at the offices of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 000
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx, at 10:00 a.m., local time on
February 17, 1999; or such other time and place and/or on such other date as the
Sellers and the Purchaser may agree. As a condition to the Preferred Closing,
all of the representations and warranties contained in Sections 1.3 and 1.4
hereof shall be true and correct as of the Preferred Closing as certified by
both the Purchaser and Sellers at the Preferred Closing.
1.2 PURCHASE AND SALE OF PREFERRED WARRANTS. If there has not been an
effective call for redemption pursuant to Section 2(a) of the Warrant Amendment
dated of even date herewith between the Company and Sellers (I.E., the
conditions contained in said Section 2(a) have not been satisfied), at a Warrant
Closing (as defined below) to take place on April 30, 1999:
(a) The Purchaser will purchase from the Sellers, and the
Sellers will sell to the Purchaser, any and all Warrants the Sellers then hold
so unredeemed and unexercised for a purchase price equal to $3.00 per share of
Common Stock subject to such Warrants (the "Warrant Purchase Price").
(b) The Sellers will deliver to the Purchaser such Warrants;
and
(c) The Purchaser will deliver to an account designated by the
Sellers, in immediately available funds, the amount of the Warrant Purchase
Price.
(d) The closing of the purchase and sale of the Warrants (the
"Warrant Closing"), shall take place at the offices of Xxxxxx & Xxxxxx, 000 00xx
Xxxxxx X.X., Xxxxxxxxxx, X.X., at 10:00 a.m., local time on April 30, 1999; or
such other time and place and/or on such other date as the Sellers and the
Purchaser may agree. As a condition to the Warrant Closing, all of the
representations and warranties contained in Sections 1.3 and 1.4 hereof shall be
true and correct as of the Warrant Closing as certified by both the Purchaser
and Sellers at the Warrant Closing.
1.3 PURCHASER REPRESENTATIONS AND WARRANTIES.
In connection with the purchase and sale of the Preferred Shares and
the Warrants hereunder, the Purchaser represents and warrants to the Sellers
that:
(a) The Purchaser is acquiring the Preferred Shares and the
Warrants for its own account for investment purposes only and not with a view
to, or intention of, making a distribution thereof within the meaning of the
Securities Act of 1933, as amended (the "Act"), or any applicable state
securities laws, and the Preferred Shares and the Warrants will not be
transferred or disposed of in contravention of the Act or any applicable state
securities laws.
(b) The Purchaser understands (i) that the Preferred Shares
and the Warrants have not been registered under the Act by reason of their
issuance in a transaction exempt from the registration and prospectus delivery
requirements of the Act pursuant to Section 4(2) thereof and have not been
registered under any state or other jurisdiction's securities laws, and (ii) the
Sellers' reliance on such exceptions is predicated on the Purchaser's
representations set forth herein, and (iii)
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that the Preferred Shares and the Warrants must be held indefinitely unless the
sale or other transfer thereof is subsequently registered or exemptions from
such registration requirements are available. The Purchaser is further aware
that the Sellers are under no obligation to register the Preferred Shares or the
Warrants under the Act or any state or other jurisdiction's securities laws or
to assist the Purchaser in complying with any exemption from such registration
requirements.
(c) The Purchaser acknowledges that investment in the
Preferred Shares and the Warrants involves substantial risks, including the risk
of total loss of its investment in the Preferred Shares and the Warrants. The
Purchaser (i) is able to bear the economic risk of its investment in the
Preferred Shares and the Warrants for an indefinite period of time; (ii) has
adequate means, other than the Preferred Shares, the Warrants or funds invested
therein, of providing for its current and foreseeable needs; (iii) has no
foreseeable need to sell or otherwise dispose of any of the Preferred Shares or
the Warrants; and (iv) has sufficient net worth to sustain a loss of its entire
investment in the Preferred Shares and in the Warrants in the event such loss
should occur.
(d) The Purchaser is an "accredited investor," as such term is
defined in Rule 501 of Regulation D promulgated under the Act. The Purchaser and
its agents and representatives have such knowledge and experience in financial
and business matters as to enable them to utilize the information made available
to them in connection with the transactions contemplated hereby to evaluate the
merits and risks of an investment in the Preferred Shares and the Warrants and
to make an informed decision with respect thereto, and such an evaluation and
informed decision have been made.
(e) The Purchaser has the legal capacity and authority to
enter into and perform all of its obligations under this Agreement. This
Agreement constitutes the legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms. The execution,
delivery and performance of this Agreement does not and will not conflict with,
violate, cause a breach of or constitute a default under (i) any agreement,
contract or other instrument or obligation to which the Purchaser is a party or
by which the Purchaser is bound or (ii) any judgment, order, decree, statute,
rule or regulation to which the Purchaser is subject.
(f) The Purchaser understands that the Preferred Shares and
the Warrants it is purchasing are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from the issuer
in a transaction not involving a public offering and that under such laws and
applicable regulations such Preferred Shares and such Warrants may be resold
without registration under the Act, only in certain limited circumstances. In
this connection, such Purchaser represents that it is familiar with SEC Rule
144, as presently in effect, and understands the resale limitations imposed
thereby and by the Act.
(g) The Purchaser acknowledges that the Sellers may, between
the date hereof and the Warrant Closing, exercise some or all of the Warrants
and under such circumstances, Sellers shall have no obligations to the Purchaser
to sell any Warrants to the extent so exercised, and, further, shall have no
obligation to sell to the Purchaser any shares of Common Stock acquired by the
Sellers pursuant to such exercise.
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1.4 SELLERS' REPRESENTATIONS AND WARRANTIES
In connection with the purchase and sale of the Preferred Shares and
the Warrants hereunder, the Sellers' represent and warrant to the Purchaser
that:
(a) The Preferred Shares and the Warrants to be sold at the
Preferred Closing and the Warrant Closing are lawfully held by the Sellers and
are free and clear of any and all taxes, liens, claims and encumbrances.
(b) The Sellers have the legal capacity and authority to enter
into and perform all of its obligations under this Agreement. This Agreement
constitutes the legal, valid and binding obligation of the Sellers, enforceable
against the Sellers in accordance with its terms. The execution, delivery and
performance of this Agreement does not and will not conflict with, violate,
cause a breach of or constitute a default under (i) any agreement, contract or
other instrument or obligation to which the Purchaser is a party or by which the
Sellers are bound or (ii) any judgment, order, decree, statute, rule or
regulation to which the Sellers are subject.
ARTICLE 2.
GENERAL PROVISIONS
2.1 LEGENDS. The Purchaser understands and agrees that, in addition to
any other legends required by applicable law, the certificate or certificates
representing the Preferred Shares and the Warrants will bear legends
substantially to the effect set forth below and that a stop transfer order may
be placed with respect thereto.
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS. THEY 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 LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
2.2 SURVIVAL. The representations, warranties and covenants contained
in this Agreement shall survive the purchase and sale of the Preferred Shares
and the Warrants pursuant to this Agreement.
2.3 AMENDMENT. This Agreement may be amended, or any provision hereof
may be waived, at any time by an agreement in writing of the parties hereto.
2.4 ENTIRE AGREEMENT; SUCCESSORS. This Agreement contains the entire
agreement among the parties hereto with respect to the transactions contemplated
hereunder and supersedes all prior arrangements or understandings with respect
thereto, written or oral, other than documents referred to herein. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
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2.5 NO ASSIGNMENT. No party hereto may assign any of its rights or
obligations under this Agreement to any other person without the written consent
of the other party.
2.6 NOTICES. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally,
by facsimile or sent by overnight express or by registered or certified mail,
postage prepaid, addressed as follows:
The Sellers:
c/o The Palladin Group, L.P.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx XX 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to the Purchaser, to the address or facsimile set forth beneath the
signature of the Purchaser on the signature page hereof.
All such deliveries shall be deemed effective when received by the
person entitled to such receipt or when delivery has been attempted but refused
by such person. Any party may change the person or address to which such
deliveries shall be made with respect to such party by delivering notice thereof
to the other party hereto in accordance with this Section.
2.7 CAPTIONS. The captions contained in this Agreement are for
reference purposes only and are not part of this Agreement.
2.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
2.9 GOVERNING LAW AND VENUE. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State of
New York applicable to agreements made and entirely to be performed within such
jurisdiction. The party bringing any action under this Agreement shall only be
entitled to choose the federal or state courts in the State of New York as the
venue for such action, and each party consents to the jurisdiction of the court
chosen in such manner for such action.
2.10 FURTHER ASSURANCES. Subject to the terms and conditions herein
provided, each of the parties hereto shall use reasonable efforts to take, or
cause to be taken, such action, to execute and deliver, or cause to be executed
and delivered, such additional documents and instruments and to do, or cause to
be done, all things necessary, proper or advisable under the provisions of this
Agreement and under applicable law to consummate and make effective the
transactions contemplated by this Agreement.
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2.11 CONVERSION OF PREFERRED SHARES BY THE PURCHASER. The Purchaser
agrees not to convert any Preferred Shares until 30 days after the Sellers have
converted all Preferred Shares held by the Sellers provided, however, that this
Section 2.11 shall not apply if the condition described in Section 12(a)(i) of
the Articles of Amendment (providing for shareholder approval) is fulfilled. The
Purchaser further agrees not to sell or transfer any of the Preferred Shares
without first obtaining an obligation from any proposed purchaser or transferee
of the Preferred Shares to agree to the restrictions set forth in this Section
2.11.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
HALIFAX FUND, L.P.
THE GLENEAGLES FUND COMPANY
PALLADIN OVERSEAS FUND LIMITED
COLONIAL PENN LIFE INSURANCE COMPANY
By: /s/ Xxxxxx Xxxxxxx
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By: The Palladin Group, L.P., as
Attorney-in-Fact and Investment
Advisor
By: /s/ Xxxxxx Xxxxxxx
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Title: Partner
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PALLADIN SECURITIES L.L.C.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: Partner
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PALLADIN PARTNERS I, L.P.
By: /s/ Xxxxxx Xxxxxxx
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By: The Palladin Group, L.P., as
Attorney-in-Fact and Investment Advisor
By: /s/ Xxxxxx Xxxxxxx
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Title: Partner
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Accepted and Agreed to:
COTTON COMMUNICATIONS, INC.
Xxxxx Xxxxx
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By: Xxxxx Xxxxx
Title: President
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Address: 000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
