EXHIBIT 2.7.4
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of November __, 1999, by and between Able Telcom Holding Corp., a Florida
corporation (the "Company"), and each of Xxxxxx X. Xxxxxx, C. Xxxxxxx Xxxxxx and
Xxxxx X. Xxxxxx (each sometimes referred to herein individually as a
"Shareholder" and sometimes collectively as the "Shareholders").
WHEREAS, effective as of the date hereof, Specialty Electronics
Systems, Inc. ("SES"), of which Xxxxxx and Southern Aluminum & Steel Corporation
("SASCO") were former shareholders, has been merged with and into SES
Acquisition Corp. ("SES Acquisition"), a wholly-owned subsidiary of the Company;
WHEREAS, effective as of the date hereof, SASCO, of which Xxxxxx and
Xxxxxx were former shareholders, has been merged with and into SASCO Acquisition
Corp. ("SASCO Acquisition"), a wholly-owned subsidiary of the Company;
WHEREAS, in connection with such mergers, the Shareholders will receive
shares of the Company's Common Stock, as defined below, in an amount to be
determined pursuant to the terms of the Agreement and Plan of Merger dated of
even date herewith, by and among the Company, SES, SES Acquisition and the
Shareholders (the "SES Merger Agreement") and pursuant to the terms of that
certain Agreement and Plan of Merger, dated of even date herewith, by and among
the Company, SASCO, SASCO Acquisition, Xxxxxx and Xxxxxx (the "SASCO Merger
Agreement" and together with the SES Merger Agreement, the "Merger Agreements");
and
WHEREAS, to provide liquidity to the Stockholders with respect to the
ownership of the Common Stock, the Company wishes to provide certain rights to
the Stockholders to require registration for resale of their shares of Common
Stock with the Securities and Exchange Commission;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. For convenience, certain terms used in more than one part
of this Agreement are listed in alphabetical order and defined or referred to
below (such terms as well as any other terms defined elsewhere in this Agreement
shall be equally applicable to both singular and plural forms of the terms
defined).
"AGREEMENT" means this Registration Rights Agreement.
"BOARD" means the Board of Directors of the Company.
"COMMON STOCK" means the Common Stock, no par value of the Company.
"COMMISSION" means the Securities and Exchange Commission.
"EQUITY SECURITY" means any stock or similar security of the Company or
any security (whether stock or indebtedness for borrowed money) convertible of
exchangeable, with or without consideration, into or for any stock or similar
security, or any security (whether stock or indebtedness for borrowed money)
carrying any warrant or right to subscribe to or purchase any stock or similar
security, or any such warrant or right.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HOLDER" of any security means the record or beneficial owner of such
security.
"HOLDERS OF A MAJORITY OF THE REGISTRABLE SECURITIES" means the Person
or Persons who are the Holders of greater than 50% of the shares of Registrable
Securities then outstanding.
"PERSON" includes any natural person, corporation, trust, association,
company, partnership, joint venture and other entity and any government,
governmental agency, instrumentality or political subdivision.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing with the Commission a registration
statement in compliance with the Securities Act, and the declaration or ordering
of the effectiveness of such registration statement by the Commission.
"REGISTRABLE SECURITIES" means (1) all Common Stock owned now or in the
future by the Stockholders pursuant to the Merger Agreements, and (2) any
securities issued or issuable with respect to the Common Stock referred to in
clause (1) above by way of a stock dividend or stock split or in connection with
a combination of shares, reclassification, recapitalization, merger or
consolidation or reorganization of the Company; PROVIDED, HOWEVER, that such
shares of Common Stock shall not be treated as Registrable Securities (i) they
have been sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, (ii) they have been sold in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities Act under Section 4(1) thereof so that all transfer restrictions
and restrictive legends with respect to such Common Stock are removed upon the
consummation of such sale or (iii) they are available for resale under Rule 144
under the Securities Act without reference to the volume limitations thereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHAREHOLDERS" has the meaning assigned to it in the preamble hereto.
2. REQUIRED REGISTRATION.
(a) Upon the written request of all of the Shareholders delivered to
the Company on or after the Payment Date for Year Four, the Company shall
prepare and file as soon as reasonably practicable a registration statement
under the Securities Act covering all of the Registrable Securities and shall
use its commercially reasonable efforts
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to cause such registration statement to become effective as expeditiously as
possible; PROVIDED that the Company may delay filing any registration statement
and withhold efforts to cause any such registration statement to become
effective pursuant to this Section 2 for a period of up to a maximum of 180 days
if (i) (A) in the opinion of counsel for the Company, the Company would thereby
be required to disclose information relating to pending corporate developments
or business transactions (including any financing) involving the Company not
otherwise required by law to be publicly disclosed and (B) in the good faith
judgment of the Board such disclosure at such time could have a material adverse
effect on the Company or on any such corporate development or business
transaction or (ii) in the good faith judgment of the Board such registration
would have a material adverse effect on a registered public offering of
securities by the Company then in process (which registered public offering will
give rise to the incidental registration rights set forth in Section 3 hereof
upon its consummation). Following the delay of the filing of a registration
statement or withholding of efforts to cause any registration statement to
become effective in accordance with the above, the Company shall promptly
proceed with such filing or resume efforts to cause a declaration of
effectiveness at the earliest time such disclosure can be made without material
adverse effect or such other public offering is abandoned or completed (subject
to section 2(c) hereof), as the case may be, whether or not such 180-day period
has expired. The Company shall include in such registration statement all shares
of Registrable Securities.
(b) The Company shall be obligated to prepare, file and use
its commercially reasonable efforts to cause to become effective only one
registration statement pursuant to this Section 2 and shall be obligated to
maintain the effectiveness of such registration statement until the earlier of
(i) the sale of all shares registered pursuant thereto or (ii) the date that is
120 days after the date on which the registration statement is initially
declared effective.
(c) Notwithstanding the requirements of Section 2(a), the
Company (i) shall not be required by this Section 2 to effect a registration of
Registrable Securities unless Form S-3 or other equivalent form is then
available for such registration and (ii) shall not be required to effect a
registration of Registrable Securities pursuant to this Section 2 within the
180-day period immediately following the effective date of any underwritten
offering of securities by the Company.
(d) If Shareholders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall
provide the Company with the name of the managing underwriter or underwriters
(the "managing underwriter") that a majority in interest of the Shareholders
propose to employ, which managing underwriter shall be reasonably acceptable to
the Company, as a part of their request made pursuant to this Section 2, and the
Shareholders shall include such information in the written notice referred to in
Section 2(a). If no such notice is provided, the Company may at its option
require distribution of such securities by means of a firm commitment
underwriting and may choose the managing underwriter, so long as such
underwriter is a nationally recognized underwriting firm, which managing
underwriter shall be reasonably acceptable to a majority in interest of the
Shareholders. In either such event the right of any Holder to registration
pursuant to this Section 2 shall be conditioned upon such Holder's participation
in such underwriting and the inclusion of such Holder's
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Registrable Securities in the underwriting to the extent requested (unless
otherwise mutually agreed by the Holders of a Majority of the Registrable
Securities and such Holder) to the extent provided herein. All Holders proposing
to distribute their securities through such underwriting shall enter into
(together with the Company) an underwriting agreement with the underwriter or
underwriters selected for such underwriting, in the manner set forth above,
provided that such underwriting agreement is in customary form and is reasonably
acceptable to the Holders of a majority of the shares of Registrable Securities.
(e) If the managing underwriter has not limited the number of
Registrable Securities to be underwritten, the Company and, subject to the
requirements of Section 7 hereof, other holders of the Company's securities may
include securities for its (or their) own account in such registration if (i)
the managing underwriter so agrees and (ii) the number of Registrable Securities
which would otherwise have been included in such registration and underwriting
will not thereby be limited and (iii) such other securities are then registrable
on Form S-3.
3. INCIDENTAL REGISTRATION.
(a) Each time the Company shall determine to file a
registration statement under the Securities Act (other than pursuant to Section
2 hereof and other than on Form S-4 or S-8, a registration statement on Form S-1
covering solely an employee benefit plan, a registration statement on Form S-3
covering solely offers pursuant to a dividend or interest reinvestment plan or
the Company's selling shareholder registration statement on Form S-1 currently
under review by the SEC) in connection with the proposed offer and sale for
money of any of its securities either for its own account or on behalf of any
other security holder, the Company shall give prompt written notice of its
determination to the Shareholders. Upon the written request of a Holder of any
shares of Registrable Securities given within ten days after the receipt of such
written notice from the Company, the Company shall cause all such Registrable
Securities, the Holders of which have so requested registration thereof to be
included in such registration statement and registered under the Securities Act,
all to the extent requisite to permit the sale or other disposition by the
prospective seller or sellers of the Registrable Securities to be so registered.
(b) If the registration of which the Company gives written
notice pursuant to Section 3(a) is for a public offering involving an
underwriting, the Company shall so advise the Shareholders as a part of its
written notice. All Shareholders proposing to distribute their Registrable
Securities through such underwriting shall enter into (together with the Company
and the other holders distributing their securities through such underwriting)
an underwriting agreement with the underwriter or underwriters selected for such
underwriting by the Company, provided that such underwriting agreement is in
customary form and is reasonably acceptable to the Holders of a majority of the
shares of Registrable Securities requested to be included in such registration
and provides for such Shareholders to withhold from the market all other
Registrable Shares held by such Shareholders for not more than 180 days.
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(c) Notwithstanding any other provision of this Section 3, if
the managing underwriter of an underwritten distribution advises the Company and
the Holders of the Registrable Securities participating in such registration in
writing that in its good faith judgment the inclusion of the Registrable
Securities and the other securities requested to be registered would materially
adversely affect the distribution of all securities to be offered in such
registration, then (i) the number of shares of Registrable Securities and other
securities to be included in the offering other than any shares to be included
on behalf of the Company shall be reduced to that number of shares which in the
good faith judgment of the managing underwriter can be sold in such offering
(except for shares to be included pursuant to demand registration rights granted
by the Company in accordance with Section 7 hereof, in an offering initiated
upon the exercise of such rights, which shall have priority over the shares of
Registrable Securities), and (ii) such reduced number of shares shall be
allocated among all participating Holders of Registrable Securities and the
holders of other securities to be included therein, in proportion, as nearly as
practicable, as each such Person's shares to be included bears to the aggregate
number of shares of Registrable Securities and other securities proposed to be
included by such Holders and other holders at the time of the filing of the
registration statement. All Registrable Securities and other securities which
are excluded from the underwriting by reason of the underwriter's marketing
limitation and all other Registrable Securities not originally requested to be
so included shall not be included in such registration and shall be (A) withheld
from the market by the Holders thereof for a period, not to exceed 180 days
following the effective date of such registration, which the managing
underwriter reasonably determines is necessary to effect the underwritten public
offering and (B) upon notice from the Company, withheld from the market by the
Holders thereof for a period not to exceed 30 days prior to the effective date
of such registration.
4. REGISTRATION PROCEDURES. If and whenever the Company is
required by the provisions of Section 2 or 3 hereof to effect the registration
of Registrable Securities under the Securities Act, the Company, at its expense
and as expeditiously as possible, shall:
(a) In accordance with the Securities Act and all applicable
rules and regulations, prepare and file with the Commission a registration
statement with respect to such securities and use its commercially reasonable
efforts to cause such registration statement to become and remain effective
until the securities covered by such registration statement have been sold, and
prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus contained therein as may be necessary
to keep such registration statement effective and such registration statement
and prospectus accurate and complete until the securities covered by such
registration statement have been sold;
(b) If the offering is to be underwritten, in whole or in
part, enter into a written underwriting agreement in form and substance
reasonably satisfactory to the managing underwriter of the public offering and
the Holders of a majority of the Registrable Securities participating in such
offering;
(c) Furnish to the Holders of securities participating in such
registration and to the underwriters of the securities being registered such
number of
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copies of the registration statement and each amendment and supplement thereto,
preliminary prospectus, final prospectus and such other documents as such
underwriters and Holders may reasonably request in order to facilitate the
public offering of such securities;
(d) Use its commercially reasonable efforts to register or
qualify the securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as such participating Holders
and underwriters may reasonably request within such time period as is required
by the laws of such jurisdictions, except that the Company shall not for any
purpose be required to execute a general consent to service of process or to
qualify to do business as a foreign corporation in any jurisdiction where it is
not so qualified;
(e) Notify the Shareholders participating in such
registration, promptly after it shall receive notice thereof, of the date and
time when such registration statement and each post-effective amendment thereto
has become effective or a supplement to any prospectus forming a part of such
registration statement has been filed;
(f) Notify the Shareholders participating in such registration
promptly of any request by the Commission for the amending or supplementing of
such registration statement or prospectus or for additional information;
(g) Prepare and file with the Commission, as soon as
practicable upon the request of a majority of the Shareholders, any amendments
or supplements to such registration statement or prospectus which, in the
opinion of counsel for the Holders, is required under the Securities Act or the
rules and regulations thereunder in connection with the distribution of the
Registrable Securities by such Holders;
(h) Prepare and file promptly with the Commission, and
promptly notify the Shareholders of the filing of, such amendments or
supplements to such registration statement or prospectus as may be necessary to
correct any statements or omissions if, at the time when a prospectus relating
to such securities is required to be delivered under the Securities Act, any
event has occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
(i) In case any of such Holders or any underwriter for any
such Holders is required to deliver a prospectus at a time when the prospectus
then in circulation is not in compliance with the Securities Act or the rules
and regulations of the Commission, prepare as soon as practicable upon request
such amendments or supplements to such registration statement and such
prospectus as may be necessary in order for such prospectus to comply with the
requirements of the Securities Act and such rules and regulations;
(j) Advise the Shareholders promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of such registration statement or the
initiation or threatening
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of any proceeding for that purpose and promptly use its commercially reasonable
efforts to prevent the issuance of any stop order or to obtain its withdrawal if
such stop order should be issued; and
(k) Make available for inspection upon reasonable request by
any Holder of Registrable Securities covered by such registration statement, by
any managing underwriter of any distribution to be effected pursuant to such
registration statement and by any attorney, accountant or other agent retained
by any such Holder or any such underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney, accountant or
agent in connection with such registration statement (if available).
5. EXPENSES.
(a) With respect to each registration effected pursuant to
Section 2 hereof and with respect to each inclusion of shares of Registrable
Securities in a registration statement pursuant to Section 3 hereof, the Company
shall bear all fees, costs and expenses of and incidental to such registration
and the public offering in connection therewith; PROVIDED, HOWEVER, that
security holders participating in any such registration shall bear their pro
rata share of the (i) underwriting discount and commissions, (ii) any transfer
taxes related to the sale such of securities and (iii) any accountant comfort
letter requested by the managing underwriter(s) of such registration.
(b) The fees, costs and expenses of registration to be borne
as provided in paragraph (a) above, shall include, without limitation, all
registration, filing and NASD fees, printing expenses, fees and disbursements of
counsel and accountants for the Company, fees and disbursements of counsel for
the underwriter or underwriters of such securities (if the Company and/or
selling security holders are otherwise required to bear such fees and
disbursements), all legal fees and disbursements and other expenses of complying
with state securities or blue sky laws of any jurisdictions in which the
securities to be offered are to be registered or qualified, reasonable fees and
disbursements of one firm of counsel for the selling security holders, selected
by the Holders of a majority of the shares of Registrable Securities to be
included in such registration.
6. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify and hold harmless
each Holder of Registrable Securities included in a registration statement
pursuant to the provisions of this Agreement and each of such Holder's officers
and directors and each Person who controls such Holder within the meaning of the
Securities Act and any underwriter (as defined in the Securities Act) for such
Holder, and any Person who controls such underwriter within the meaning of the
Securities Act, from and against, and agrees to reimburse such Holder, its
officers, directors and controlling Persons and each such underwriter and
controlling Person of such underwriter with respect to, any and all claims,
actions (actual or threatened), demands, losses, damages, liabilities, costs and
expenses to which such Holder, its officers, directors or controlling Persons,
or any such
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underwriter or controlling Person of such underwriter may become subject under
the Securities Act or otherwise, insofar as such claims, actions, demands,
losses, damages, liabilities, costs or expenses arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; PROVIDED, HOWEVER, that
the Company will not be liable in any such case to the extent that any such
claim, action, demand, loss, damage, liability, cost or expense is caused by an
untrue statement or alleged untrue statement or omission or alleged omission so
made in strict conformity with written information furnished by such Holder,
such underwriter or such controlling Person specifically for use in the
preparation thereof.
(b) Each Holder of shares of Registrable Securities which are
included in a registration statement pursuant to the provisions of this
Agreement hereby agrees, severally and not jointly, to indemnify and hold
harmless the Company, its officers and directors and each Person who controls
the Company within the meaning of the Securities Act, from and against, and
agrees to reimburse the Company, its officers, directors and controlling Persons
with respect to, any and all claims, actions (actual or threatened), demands,
losses, damages, liabilities, costs or expenses to which the Company, its
officers, directors, or such controlling Persons may become subject under the
Securities Act or otherwise, insofar as such claims, actions, demands, losses,
damages, liabilities, costs or expenses arise out of or are based upon any
untrue or alleged untrue statement of any material fact contained in such
registration statement, any prospectus contained therein, or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, in each case to the extent, BUT ONLY TO
THE EXTENT, that such untrue statement or alleged untrue statement or omission
or alleged omission was so made in reliance upon and in strict conformity with
written information furnished by such Holder specifically for use in the
preparation thereof.
(c) Promptly after receipt by a party indemnified pursuant to
the provisions of subsection (a) or (b) of this Section 6 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim therefor is to be
made against the indemnifying party pursuant to the provisions of subsection (a)
or (b), notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 6 and shall not relieve the indemnifying party from liability under this
Section 6 unless such indemnifying party is prejudiced by such omission. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying parties similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; PROVIDED, HOWEVER,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall
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have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel (in which case the indemnifying party shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties). Upon the permitted assumption by the indemnifying
party of the defense of such action, and approval by the indemnified party of
counsel, which approval will not be unreasonably withheld, the indemnifying
party shall not be liable to such indemnified party under subsection (a) or (b)
for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof (other than reasonable costs of
investigation) unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the immediately preceding sentence, (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time, (iii) the indemnifying
party and its counsel do not actively and vigorously pursue the defense of such
action, or (iv) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party. No
indemnifying party shall be liable to an indemnified party for any settlement of
any action or claim without the consent of the indemnifying party and no
indemnifying party may unreasonably withhold its consent to any such settlement.
No indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability with respect to such claim or litigation.
(d) If the indemnification provided for in subsection (a) or
(b) of this Section 6 is held by a court of competent jurisdiction to be
unavailable to a party to be indemnified with respect to any claims, actions,
demands, losses, damages, liabilities, costs or expenses referred to therein,
then each indemnifying party under any such subsection, in lieu of indemnifying
such indemnified party thereunder, hereby agrees to contribute to the amount
paid or payable by such indemnified party as a result of such claims, actions,
demands, losses, damages, liabilities, costs or expenses in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party on the one hand and the indemnified party on the other from the related
offering. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each indemnifying party shall
contribute to such amount payable by such indemnified person in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions which resulted
in such claims, actions, demands, losses, damages, liabilities, costs or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by an indemnifying party on the one hand and an indemnified
party on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by each party
bear to the total net proceeds from the offering received by each other party
and, with respect to an underwriter, the total underwriting discounts and
commissions received by such underwriter, and in each case as set forth in the
table on the cover page of the related prospectus. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or
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the omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution hereunder
from any person who was not guilty of such fraudulent misrepresentation.
7. REPORTING REQUIREMENTS UNDER THE EXCHANGE ACT. The Company
shall at all times use its commercially reasonable efforts to file timely
(whether or not it shall then be required to do so) such information, documents
and reports as the Commission may require or prescribe under Section 13 or 15(d)
(whichever is applicable) of the Exchange Act. The Company forthwith upon
request shall furnish to any Holder of Registrable Securities (a) a written
statement by the Company that it has complied with the reporting of Section 13
or 15(d) of the Exchange Act; (b) a copy of the most recent annual or quarterly
report of the Company, and (c) such other reports and documents filed by the
Company with the Commission as such Holder may reasonably request in availing
itself of an exemption for the sale of Registrable Securities without
registration under the Securities Act. The Company acknowledges and agrees that
the purposes of the requirements contained in this Section 8 are (x) to enable
any such Holder to comply with the current public information requirement
contained in paragraph (c) of Rule 144 under the Securities Act should such
Holder ever wish to dispose of any of the securities of the Company acquired by
it without registration under the Securities Act in reliance upon Rule 144 (or
any other similar exemptive provision) and (y) to qualify the Company for the
use of registration statements on Form S-3. In addition, the Company shall use
its commercially reasonable efforts to take such other measures and file such
other information, documents and reports, as shall be required of it hereafter
by the Commission as a condition to the availability of Rule 144 under the
Securities Act (or any similar exemptive provision hereafter in effect) and the
use of Form S-3 (or any similar form hereafter in effect). The Company also
covenants to use its commercially reasonable efforts, to the extent that it is
reasonably within its power to do so, to qualify for the use of Form S-3.
8. SHAREHOLDER INFORMATION. The Company may request each Holder
of Registrable Securities as to which any registration is to be effected
pursuant to this Agreement to furnish the Company with such information with
respect to such Holder and the distribution of such Registrable Securities as
the Company may from time to time reasonably request in writing, including as
shall be required by law or by the Commission in connection therewith, and each
Holder of Registrable Securities as to which any registration is to be effected
pursuant to this Agreement shall furnish the Company with such information, and
shall completely respond to any reasonable questionnaire with respect thereto in
a timely manner.
9. FORMS. All references in this Agreement to particular forms of
registration statements are intended to include, and shall be deemed to include,
references to all successor forms which are intended to replace, or to apply to
similar transactions as, the forms herein referenced.
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10. MISCELLANEOUS.
(a) WAIVERS AND AMENDMENTS. With the written consent of the
Holders of a Majority of the Registrable Securities, the obligations of the
Company and the rights of the Shareholders under this Agreement may be waived
(either generally or in a particular instance, either retroactively or
prospectively and either for a specified period of time or indefinitely), and
with the same consent the Company, when authorized by resolution of its Board,
may enter into a supplementary agreement for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of any supplemental agreement or modifying in any manner the
rights and obligations hereunder of the Shareholders and the Company; PROVIDED,
HOWEVER, that no such waiver or supplemental agreement shall reduce the
aforesaid proportion of Registrable Securities, the Holders of which are
required to consent to any waiver or supplemental agreement, without the consent
of the Holders of all of the Registrable Securities. Neither this Agreement nor
any provision hereof may be changed, waived, discharged or terminated orally or
by course of dealing, but only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, except to the extent provided in this Section 11(a). Specifically, but
without limiting the generality of the foregoing, the failure of any Shareholder
at any time or times to require performance of any provision hereof by the
Company shall in no manner affect the right of any Shareholder at a later time
to enforce the same, assuming such right can then otherwise be enforced. No
waiver by any party of the breach of any term or provision contained in this
Agreement, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained in this Agreement.
(b) EFFECT OF WAIVER OR AMENDMENT. Each Shareholder
acknowledges that by operation of Section 11(a) hereof the Holders of a Majority
of the Registrable Securities will, subject to the limitations contained in such
Section 11(a), have the right and power to diminish or eliminate certain rights
of such Shareholder under this Agreement.
(c) RIGHTS OF SHAREHOLDERS INTER SE. Subject to the consent
provisions of Section 11(a) above, each Shareholder shall have the absolute
right to exercise or refrain from exercising any right or rights which such
Shareholder may have by reason of this Agreement or any Registrable Security,
including, without limitation the right to consent to the waiver of any
obligation of the Company under this Agreement and to enter into an agreement
with the Company for the purpose of modifying this Agreement or any agreement
effecting any such modification, and such Shareholder shall not incur any
liability to any other Shareholder with respect to exercising or refraining from
exercising any such right or rights.
(d) NOTICES. All notices, requests, consents and other
communications required or permitted hereunder shall be in writing and shall be
delivered, or mailed first class postage prepaid, registered or certified mail,
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(i) If to any Shareholder, addressed to such Shareholder at
the address set forth below the signature line for such Shareholder, or at such
other address as such Shareholder may specify by written notice to the Company,
or
(ii) If to the Company, to the address set forth below the
signature line for the Company or at such other address as the Company may
specify by written notice to the Shareholders, and each such notice, request,
consent and other communication shall for all purposes of the Agreement be
treated as being effective or having been given when delivered, if delivered
personally, or, if sent by cable, telegram or telex, or by registered or
certified mail (postage prepaid, return receipt requested) at the earlier of its
actual receipt or three days after the same has been delivered as aforesaid.
(e) VALIDITY. If any provision of this Agreement or the
application thereof to any person or circumstance in held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be affected thereby, and
to such end, the provisions of this Agreement are agreed to be severable.
(f) PARTIES IN INTEREST. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto, whether so
expressed or not and, in particular, shall inure to the benefit of and be
enforceable by the Holder or Holders at the time of any of the Registrable
Securities. Subject to the immediately preceding sentence, this Agreement shall
not run to the benefit of or be enforceable by any Person other than a party to
this Agreement and its successors and assigns.
(g) DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(h) CHOICE OF LAW. It is the intention of the parties that the
internal substantive laws, and not the laws of conflicts, of the State of
Florida should govern the enforceability and validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties.
(i) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed personally or by a duly authorized representative
thereof as of the day and year first above written.
ABLE TELCOM HOLDING CORP.
By: ________________________________
Name:
Title:
0000 Xxxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
SHAREHOLDERS:
____________________________________
Xxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxx
P.O. Box 100309
Xxxxxxxx, XX 00000
____________________________________
C. Xxxxxxx Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
____________________________________
Xxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
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