EXHIBIT 4.19
EXECUTION VERSION
SECURITIES EXCHANGE AGREEMENT
This SECURITIES EXCHANGE AGREEMENT is dated as of February 4, 2000 (the
"Agreement") by and between RGC International Investors, LDC (the "Holder") and
Able Telcom Holding Corp. ("Company").
WHEREAS, the Holder has entered into that certain Convertible Preferred
Stock Purchase Agreement with the Company, dated June 26, 1998, including all
exhibits thereto, attached hereto as EXHIBIT A (the "Purchase Agreement"); and
pursuant thereto, on June 30, 1998, the Holder acquired 2,000 shares of Series B
Preferred Stock (the "Preferred Shares");
WHEREAS, the Holder currently holds 375 Preferred Shares with a
Conversion Price equal to $2.844; and
WHEREAS, the Holder desires to exchange 375 Preferred Shares and, in
consideration of such exchange, the Company desires to issue to the Holder
Common Stock, warrants exercisable for shares of Common Stock and the Closing
Cash Payment (as defined below).
NOW, THEREFORE, intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE 1.
EXCHANGE OF THE PREFERRED SHARES
1.1 EXCHANGE OF THE PREFERRED SHARES AND PAYMENT OF THE CLOSING CASH
PAYMENT. At the Closing (as defined below):
(a) The Company will issue and deliver to the Holder 500,000
shares of Common Stock.
(b) The Company will issue and deliver to the Holder warrants
exercisable for 100,000 shares of Common Stock at a price per share equal to
130% of the Closing Price (as defined in the Warrants) (the "Warrants") attached
hereto as EXHIBIT B.
(c) The Company will pay to the Holder a cash payment, by wire
transfer in immediately available funds to an account designated by the Holder,
in an amount equal to $5,031,978 (the "Closing Cash Payment").
(d) The Company will deliver an executed Registration Rights
Agreement dated February 4, 2000 covering the Common Stock and the shares of
Common Stock issuable upon exercise of the Warrants.
(e) The Company will deliver to the Holder an opinion of
counsel to the Company satisfactory in form and substance to the Holder.
(f) The Holder will deliver to the Company the Preferred
Shares.
(g) The closing of the exchange of the Preferred Shares and
the issuance of the Common Stock and Warrants (the "Closing"), shall take place
at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇., at
10:00 a.m., local time on February 4, 2000 or such other time and place and/or
on such other date as the Holder and the Company may agree. As conditions to the
Closing, all of the representations and warranties contained in Sections 1.2 and
1.3 hereof shall be true and correct as of the Closing as certified by both the
Holder and Company at the Closing.
1.2 COMPANY REPRESENTATIONS AND WARRANTIES.
In connection with the exchange of the Preferred Shares and the
issuance of the Common Stock and Warrants hereunder, the Company represents and
warrants to the Holder that:
(a) The Company has all requisite corporate power and
authority to enter into and perform this Agreement and to consummate the
transaction contemplated hereby and to issue the Common Stock and Warrants in
accordance with the terms hereof.
(b) The execution and delivery of this Agreement and the
Warrants and the consummation by the Company of the transactions contemplated
hereby and thereby, including the issuance of the Common Stock and the Warrants
contemplated by this Agreement, have been duly authorized by all necessary
corporate action, and no further consent or authorization of the Company or its
Board of Directors (or any committee or subcommittee thereof) or its
stockholders is required.
(c) This Agreement constitutes, and upon execution, issuance
and delivery thereof, the Warrants and the Registration Rights Agreement shall
constitute, valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally the enforcement
of creditors' rights and remedies or by other equitable principles of general
application.
(d) The Common Stock and the shares of Common Stock issuable
upon the exercise of the Warrants are duly authorized and reserved for issuance
and, upon issuance in accordance with the terms of this Agreement (in the case
of the Common Stock) and upon exercise of the Warrants in accordance with the
Warrants (in the case of shares issuable upon exercise of the Warrants), such
Common Stock and such shares of Common Stock issuable upon the exercise of the
Warrants, will be validly issued, fully paid and non-assessable, free and clear
of any and all taxes, liens, claims and encumbrances, and entitled to be traded
on the Nasdaq NMS, the American Stock Exchange or the New York Stock Exchange,
and the holders of such Common Stock and such shares of Common Stock issuable
upon the exercise of the Warrants shall be entitled to all rights and
preferences accorded to a holder of Common Stock. The outstanding shares of
Common Stock are currently listed on the Nasdaq NMS.
1.3 HOLDER'S REPRESENTATIONS AND WARRANTIES
In connection with the exchange of the Preferred Shares and the
issuance of the Common Stock and Warrants hereunder, the Holder represents and
warrants to the Company that:
(a) The Holder 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
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obligation of the Holder, enforceable against the Holder 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
Holder is a party or by which the Holder is bound or (ii) any judgment, order,
decree, statute, rule or regulation to which the Holder is subject.
(b) The Holder is an "accredited investor," as such term is
defined in Rule 501 of Regulation D promulgated under the Act. The Holder and
its agents and representatives have such knowledge and experience in financial
and business matters as to enable it to utilize the information made available
to them in connection with the transactions contemplated hereby to evaluate the
merits and risks of the exchange contemplated hereby and to make an informed
decision with respect thereto, and such an evaluation and informed decision have
been made.
(c) The Holder is entering into this Agreement for its own
account and the Holder has no present arrangement (whether or not legally
binding) at any time to sell the Common Stock or Warrants to or through any
person or entity; PROVIDED, however, that by making the representations herein,
the Holder does not agree to hold the Common Stock or Warrants for any minimum
or other specific term and reserves the right to dispose of the Common Stock and
Warrants at any time in accordance with federal and state securities laws
applicable to such disposition.
ARTICLE 2.
GENERAL PROVISIONS
2.1 LEGENDS. The Holder understands and agrees that, in addition to any
other legends required by applicable law, the certificate or certificates
representing the Common Stock 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 exchange of the Preferred Shares 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 Holder:
c/o ▇▇▇▇ ▇▇▇▇ Capital Management, L.P.
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The Company:
Able Telcom Holding Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Attn: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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
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Agreement and under applicable law to consummate and make effective the
transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
HOLDER:
RGC INTERNATIONAL INVESTORS, LDC
By: ▇▇▇▇ ▇▇▇▇ Capital Management, L.P.
Investment Manager
By: RGC General Partner Corp, as
General Partner
_____________________________________
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
ABLE TELCOM HOLDING CORP.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
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EXHIBIT B
COMMON STOCK PURCHASE WARRANT
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