EXHIBIT 4.13
PREFERRED STOCK PURCHASE AGREEMENT
PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of
February 17, 1999, by and among Able Telcom Holding Corp., a Florida
corporation (the "COMPANY"), RGC International Investors, LDC, a Cayman Islands
Limited duration company ("RGC"), and Cotton Communications, Inc., a Georgia
corporation ("PURCHASER").
WHEREAS:
A. The Company and RGC entered into a Convertible Preferred Stock
Purchase Agreement, dated as of June 26, 1998 (the "PURCHASE AGREEMENT"),
pursuant to which RGC (i) purchased shares of the Company's Series B Convertible
Preferred Stock (the "SERIES B PREFERRED SHARES"), which are convertible into
Common Stock, $.001 par value per share, of the Company (the "COMMON STOCK"),
upon the terms and subject to the limitations and conditions set forth in the
Articles of Amendment to the Articles of Incorporation of the Company (the
"SERIES B CERTIFICATE OF DESIGNATION") and (ii) in consideration for the
purchase of the Series B Preferred Shares, received a Common Stock Purchase
Warrant to purchase 175,000 shares of Common Stock (the "SERIES B WARRANTS");
B. Contemporaneously with the issuance of the Series B Warrants, the
Company issued to RGC an additional Common Stock Purchase Warrant to purchase
195,000 shares of Common Stock (the "ADDITIONAL WARRANTS" and together with the
Series B Warrants, the "WARRANTS");
C. In connection with the Purchase Agreement, the Company and RGC
entered into two Registration Rights Agreements, dated as of June 30, 1998 (the
"REGISTRATION RIGHTS AGREEMENTS"), pursuant to which the Company was obligated
to file and obtain effectiveness with the Securities and Exchange Commission
(the "SEC"), on or before October 28, 1998, of a Registration Statement (as
defined in the Registration Rights Agreements) (the "REGISTRATION STATEMENT")
registering the resale by RGC of the Registrable Securities (as defined in
Registration Rights Agreements). The Company is in breach of its obligations
under the Registration Rights Agreements because, among other things, it failed
to obtain effectiveness of such Registration Statement. The Company desires to
comply with the provisions of the Registration Rights Agreements by registering
for resale the Retained Conversion Shares (as defined below), Warrant Shares (as
defined below) and Restricted Conversion Shares (as defined below);
D. RGC has converted a portion of the Series B Preferred Shares into
461,907 shares of Common Stock which RGC presently is holding and which shares
have not been registered for resale as required by the Registration Rights
Agreements (the "RESTRICTED CONVERSION SHARES");
E. (i) Purchaser desires to purchase and RGC desires to sell 1,425 of
the outstanding Series B Preferred Shares held by RGC for a purchase price of
$11,000,000 (the "TRANSFERRED SERIES B PREFERRED SHARES") and (ii) RGC desires
to retain 375 of the outstanding Series B Preferred Shares held by RGC (the
"RETAINED SERIES B PREFERRED SHARES"). The shares of Common Stock issuable upon
conversion of the Retained Series B Preferred Shares are referred to herein as
the "RETAINED CONVERSION SHARES";
F. The Company desires to amend the terms of the Warrants in accordance
with the terms of this Agreement. The shares of Common Stock issuable upon
exercise of the Warrants are referred to herein as the "WARRANT SHARES";
G. All capitalized terms used but not defined in this Agreement shall
have the meanings ascribed to them in either the Purchase Agreement, the Series
B Certificate of Designation or the Registration Rights Agreements. The Series B
Preferred Shares, the Transferred Series B Preferred Shares, the Retained Series
B Preferred Shares, the Warrants, the Retained Conversion Shares, the Restricted
Conversion Shares and the Warrant Shares are collectively referred to herein as
the "SECURITIES".
NOW THEREFORE, the Company, RGC and Purchaser severally (and not
jointly) hereby agree as follows:
1. PURCHASE OF SERIES B PREFERRED SHARES; AMENDMENT OF
WARRANTS AND GRANT OF PROXY.
a. PURCHASE OF SERIES B PREFERRED SHARES. On the Closing
Date (as defined below), (i) Purchaser shall purchase from RGC all of its
rights, title and interest in the Transferred Series B Preferred Shares for an
aggregate purchase price of $11,000,000 (the "PURCHASE PRICE"); PROVIDED,
HOWEVER, that Purchaser and the Company acknowledge that notwithstanding RGC's
transfer of the Transferred Series B Preferred Shares to Purchaser and
notwithstanding anything contained in the Series B Certificate of Designation to
the contrary, RGC shall retain the portion of the Cap Allowance Amount
attributable to the Transferred Series B Preferred Shares and that the retained
portion of the Cap Allocation Amount shall be allocated to the Retained Series B
Preferred Shares held by RGC until such time as RGC has converted all of the
Retained Series B Preferred Shares, whereupon the remainder of such portion of
the Cap Allocation Amount originally attributable to the Transferred Series B
Preferred Shares shall transfer to Purchaser, and (ii) RGC shall deliver the
Transferred Series B Preferred Shares along with duly executed stock powers to
Purchaser in exchange for the Purchase Price.
b. AMENDMENT OF THE WARRANTS. On the Closing Date (as
defined below), the Company hereby amends the outstanding Warrants held by RGC
in the following manner:
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(i) The Conversion Price (as defined in the Warrants)
shall be reduced from $19.80 to $13.25; and
(ii) The Company shall be entitled, on any
day following the Closing Date on which the Closing Bid Price (as defined in the
Series B Certificate of Designation) of the Common Stock for each trading day
during the three (3) consecutive trading day period ending on the trading day
immediately preceding such date (the "CALCULATION PERIOD") is equal to or
greater than 150% of the then applicable Conversion Price (as defined in the
Warrants and as amended hereby), to deliver a written notice to the Holder
requiring such Holder to exercise the Warrants in accordance with the terms
thereof on the date which is ten (10) trading days following the date of such
notice (the "EXERCISE DATE"); PROVIDED, HOWEVER, that the Company shall have
such right if and only if for a period of thirty (30) consecutive trading days
prior to the beginning of such Calculation Period and at all times during such
Calculation Period and continuing through the Exercise Date, the Warrant Shares
are (1) authorized and reserved for issuance, (2) listed for trading on each
principal exchange or market on which the shares of Common Stock of the Company
were then traded and (3) registered for resale pursuant to an effective
registration statement under the 1933 Act; PROVIDED, FURTHER, HOWEVER, that the
Holder shall not be required to exercise the Warrants with respect to any such
notice unless the Closing Bid Price of the Common Stock on the trading day
immediately preceding the Exercise Date is at least equal to 145% of the
Conversion Price.
▇. ▇▇▇▇▇ OF PROXY. Beginning on the Closing Date and ending
on the date on which RGC no longer holds any Retained Series B Preferred Shares,
Restricted Conversion Shares, Retained Conversion Shares, Warrant Shares or
Warrants (the "PROXY PERIOD"), RGC hereby appoints Purchaser the true and lawful
attorneys in fact and proxies of RGC to vote all shares of Common Stock held by
RGC during the Proxy Period with the same force and effect as RGC would be
entitled to vote if personally present at any meeting in which such shares may
be voted (the "PROXY").
d. CLOSING DATE. Subject to the satisfaction (or waiver) of
the conditions thereto set forth in Sections 7, 8 and 9 below, the date and time
of the purchase of the Transferred Series B Preferred Shares, the amendment of
the Warrants and the commencement of the Proxy Period pursuant to this Agreement
(the "CLOSING DATE") shall be 12:00 noon Eastern Standard Time on February 17,
1999. The closing of the transactions contemplated by this Agreement (the
"CLOSING") shall occur on the Closing Date at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇ &
Bockius LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other location as may be agreed to by the parties.
2. REPRESENTATIONS AND WARRANTIES OF RGC. RGC represents and warrants
to Purchaser and the Company that:
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a. AUTHORIZATION; ENFORCEMENT. This Agreement has been duly
and validly authorized. This Agreement has been duly executed and delivered on
behalf of RGC, and this Agreement constitutes a valid and binding agreement of
RGC enforceable in accordance with its terms.
b. OWNERSHIP OF PREFERRED SHARES. RGC is the beneficial and
record owner of the Transferred Series B Preferred Shares to be sold to
Purchaser pursuant to this Agreement and RGC has good and valid title to the
shares free from all taxes, liens, claims and encumbrances.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to RGC and Purchaser that:
a. ORGANIZATION AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction in which it is incorporated, with full power and authority
(corporate and other) to own, lease, use and operate its properties and to carry
on its business as and where now owned, leased, used, operated and conducted.
b. AUTHORIZATION; ENFORCEMENT. (i) the Company has all
requisite corporate power and authority to enter into and perform this
Agreement, to amend the Warrants and to consummate the transactions contemplated
hereby and thereby in accordance with the terms hereof and thereof, (ii) the
execution and delivery of this Agreement by the Company and the consummation by
it of the transactions contemplated hereby (including, without limitation, the
amendment of the Warrants and the issuance and reservation for issuance of the
Warrant Shares issuable upon exercise of the Warrants and the Retained
Conversion Shares issuable upon conversion of the Retained Series B Preferred
Shares) have been duly authorized by the Company's Board of Directors and no
further consent or authorization of the Company, its Board of Directors, or its
stockholders is required, (iii) this Agreement has been duly executed and
delivered by the Company, and (iv) this Agreement constitutes a legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms.
c. NO CONFLICTS. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby (including, without limitation, the amendment
of the Warrants and the issuance and reservation for issuance of the Warrant
Shares issuable upon exercise of the Warrants and the Retained Conversion Shares
issuable upon conversion of the Retained Series B Preferred Shares) will not (i)
conflict with or result in a violation of any provision of the Certificate of
Incorporation or By-laws (each as defined in the Purchase Agreement) or (ii)
violate or conflict with, or result in a breach of any provision of, or
constitute a default (or an event which with notice or lapse of time or both
could become a default) under, or give to others any rights of termination,
amendment, acceleration or
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cancellation of, any agreement, indenture, patent, patent license or instrument
to which the Company or any of its subsidiaries is a party, or (iii) result in a
violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations and regulations of any self
regulatory organizations to which the Company or its securities are subject)
applicable to the Company or any of its subsidiaries or by which any property or
asset of the Company or any of its subsidiaries is bound or affected. Except as
specifically contemplated by this Agreement and as required under the 1933 Act
and any applicable state securities laws, the Company is not required to obtain
any consent, authorization or order of, or make any filing or registration with,
any court, governmental agency, regulatory agency, self-regulatory organization
or stock market or any third party in order for it to execute, deliver or
perform any of its obligations under this Agreement, the Series B Certificate of
Designation, the Registration Rights Agreements or the Warrants in accordance
with the terms hereof or thereof, to amend the Warrants in accordance with the
terms hereof and to issue the Warrant Shares upon exercise of the Warrants and
to issue the Retained Conversion Shares upon conversion of the Retained Series B
Preferred Shares. All consents, authorizations, orders, filings and
registrations which the Company is required to obtain pursuant to the preceding
sentence have been obtained or effected on or prior to the date hereof.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents
and warrants to RGC and the Company that:
a. ORGANIZATION AND QUALIFICATION. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction in which it is organized, with full power and authority
(corporate and other) to own, lease, use and operate its properties and to carry
on its business as and where now owned, leased, used, operated and conducted.
b. AUTHORIZATION; ENFORCEMENT. (i) Purchaser has all
requisite corporate power and authority to enter into and perform this Agreement
and to consummate the transactions contemplated hereby in accordance with the
terms hereof, (ii) the execution and delivery of this Agreement by Purchaser and
the consummation by it of the transactions contemplated hereby have been duly
authorized by Purchaser's board of directors and no further consent or
authorization of Purchaser, its board of directors, or its stockholders is
required, (iii) this Agreement has been duly executed and delivered by
Purchaser, and (iv) this Agreement constitutes a legal, valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms.
5. COVENANTS.
a. BEST EFFORTS. The parties shall use their best efforts
to satisfy timely each of the conditions described in Sections 7, 8 and 9 of
this Agreement.
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b. EXPENSES. Each of the parties to this Agreement shall
bear their own expenses.
c. AGREEMENTS AS TO SERIES B PREFERRED SHARES.
(i) Purchaser covenants and agrees that, until the
earlier of (a) the date on which RGC shall have converted all of the Retained
Series B Preferred Shares held by RGC and (b) the date the Company has obtained
the approval of its stockholders as required by applicable rules and regulations
of Nasdaq for issuances of Common Stock in excess of the Exchange Cap, (the
earlier of such dates being hereafter referred to as the "Conversion Restriction
Release Date"), Purchaser (or any successors or assigns of the Transferred
Series B Preferred Shares) will not convert any of the Transferred Series B
Preferred Shares into shares of Common Stock. The Company covenants and agrees
that until the Conversion Restriction Release Date, it will not honor any
conversion notices submitted by Purchaser (or any successors or assigns of the
Transferred Series B Preferred Shares) or issue any shares of Common Stock upon
conversion of the Transferred Series B Preferred Shares.
(ii) The Company hereby acknowledges RGC's right to
fully convert the Retained Series B Preferred Shares in accordance with the
terms of the Series B Certificate of Designation into an aggregate of up to
534,981 shares of Common Stock based on the Exchange Cap. The Company further
acknowledges that the Conversion Price under the Series B Certificate of
Designation is $3.5075 as of the date of this Agreement.
(iii) RGC agrees to convert the Retained Series B
Preferred Shares in accordance with the Series B Certificate of Designation
within 30 days after the date on which the Registration Statement is declared
effective by the SEC (provided such Registration Statement remains in effect at
all times during such 30-day period).
d. ACKNOWLEDGMENT OF OBLIGATIONS UNDER THE PURCHASE
AGREEMENT, SERIES B CERTIFICATE OF DESIGNATION, WARRANTS AND REGISTRATION RIGHTS
AGREEMENTS. The Company hereby acknowledges its obligations and the rights of
RGC under the Purchase Agreement, the Series B Certificate of Designation, the
Warrants and the Registration Rights Agreements and, except to the extent those
agreements are expressly modified by the provisions of this Agreement, such
agreements and instruments shall remain in full force and effect.
e. CONSENT TO AMENDMENTS OF PURCHASE AGREEMENT, SERIES B
CERTIFICATE OF DESIGNATION AND REGISTRATION RIGHTS AGREEMENT. The Company and,
to the extent Purchaser has rights under the Purchase Agreement, Series B
Certificate of Designation and Registration Rights Agreements, Purchaser
covenant and agree that they will not amend or agree to amend any of the terms
of the Purchase Agreement, Series B Certificate of Designation or the
Registration Rights Agreements without the consent of RGC; PROVIDED, HOWEVER,
the Company and
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Purchaser may amend the Series B Certificate of Designation without RGC's
consent after the date on which RGC has converted all of the Retained Series B
Preferred Shares in accordance with the terms of the Series B Certificate of
Designation.
f. RECISSION OF REDEMPTION NOTICE. RGC agrees that its
Notice of Redemption at Option of Holder Upon Triggering Event (the "REDEMPTION
NOTICE") contained in that certain letter to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire, dated
January 19, 1999, shall be rescinded effective as of the Closing Date. RGC
further agrees that it will not, within 90 days of the date of this Agreement,
deliver a Notice of Redemption at Option of Holder Upon Triggering Event based
upon any event or condition in existence as of the Closing Date; PROVIDED,
HOWEVER, that notwithstanding anything contained herein to the contrary, nothing
herein shall be construed to waive RGC's right to deliver a Notice of Redemption
at Option of Holder Upon Triggering Event or Notice of Redemption at Option of
Holder Upon Major Transaction for any event or condition giving rise to such
right occurring after the Closing Date.
g. NO DELIVERY OF NOTICE OF REDEMPTION AT OPTION OF HOLDER
UPON TRIGGERING EVENT OR NOTICE OF REDEMPTION AT OPTION OF HOLDER UPON MAJOR
TRANSACTION. Purchaser covenants and agrees that it will not deliver a Notice of
Redemption at Option of Holder Upon Triggering Event or Notice of Redemption at
Option of Holder Upon Major Transaction to the Company for any reason so long as
RGC holds any of the Retained Series B Preferred Shares or Warrants.
6. REGISTRATION RIGHTS.
a. REGISTRATION RIGHTS. The Company acknowledges its
obligations under the Registration Rights Agreements including its obligation to
cause the Registration Statement to become effective and that the Company is in
breach of such obligations. The Company shall use its best efforts to cause the
Registration Statement to be declared effective by the SEC as soon as possible.
Such Registration Statement shall cover the resale by RGC of (i) the Restricted
Conversion Shares, (ii) the Warrant Shares issuable upon exercise of the
Warrants and (iii) the Retained Conversion Shares issuable upon exercise of the
Retained Series B Preferred Shares.
7. CONDITIONS TO THE COMPANY'S OBLIGATIONS. The obligation of the
Company hereunder to amend the Warrants is subject to the satisfaction, at or
before the Closing Date, of each of the following conditions thereto, provided
that these conditions are for the Company's sole benefit and may be waived by
the Company at any time in its sole discretion:
a. RGC and Purchaser shall have executed this Agreement and
delivered the same to the Company.
b. Purchaser shall have delivered the Purchase Price to
RGC.
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c. RGC shall have delivered the Transferred Series B
Preferred Shares to Purchaser.
d. The representations and warranties of each of RGC and
Purchaser shall be true and correct in all material respects as of the date when
made and as of the Closing Date as though made at that time, and each of RGC and
Purchaser shall have performed, satisfied and complied in all material respects
with their respective covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by RGC or Purchaser at or
prior to the Closing Date.
e. No litigation, statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
8. CONDITIONS TO PURCHASER'S OBLIGATIONS. The obligation of
Purchaser hereunder to purchase the Transferred Series B Preferred Shares at the
Closing is subject to the satisfaction, at or before the Closing Date, of each
of the following conditions, provided that these conditions are for Purchaser's
sole benefit and may be waived by Purchaser at any time in its sole discretion:
a. The Company and RGC shall have executed this Agreement
and delivered the same to Purchaser.
b. RGC shall have delivered to Purchaser certificates
representing the Transferred Series B Preferred Shares along with duly executed
stock powers for such certificates in accordance with Section 1(a) above.
c. The representations and warranties of the Company and
RGC set forth in this Agreement shall be true and correct in all material
respects as of the date when made and as of the Closing Date as though made at
such time and the Company and RGC shall have performed, satisfied and complied
in all material respects with their respective covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Company and RGC at or prior to the Closing Date.
d. No litigation, statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
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9. CONDITIONS TO RGC'S OBLIGATIONS. The obligation of RGC
hereunder to sell the Transferred Series B Preferred Shares to Purchaser, grant
Purchaser the Proxy at the Closing and rescind the Redemption Notice is subject
to the satisfaction, at or before the Closing Date, of each of the following
conditions, provided that these conditions are for RGC's sole benefit and may be
waived by RGC at any time in its sole discretion:
a. The Company and Purchaser shall have executed this
Agreement and delivered the same to RGC.
b. Purchaser shall have delivered to RGC the Purchase Price
for the Transferred Series B Preferred Shares in accordance with Section 1(a)
above.
c. The representations and warranties of the Company and
Purchaser set forth in this Agreement shall be true and correct in all material
respects as of the date when made and as of the Closing Date as though made at
such time and the Company and Purchaser shall have performed, satisfied and
complied in all material respects with their respective covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Company at or prior to the Closing Date.
d. No litigation, statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by or in any court or governmental authority of
competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby which prohibits the consummation of any of the
transactions contemplated by this Agreement.
e. All of the holders of Series B Preferred Shares for
which The Palladin Group signed the Purchase Agreement as attorney-in-fact (the
"PALLADIN GROUP") shall have rescinded their Notice of Redemption at Option of
Holder Upon Triggering Event sent to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire on or about January
19, 1999. The Palladin Group shall have also agreed that they will not, within
90 days of the date of this Agreement, deliver a Notice of Redemption at Option
of Holder Upon Triggering Event based upon any event or condition in existence
as of the Closing Date; PROVIDED, HOWEVER, that notwithstanding anything
contained herein to the contrary, the Palladin Group may retain the right to
deliver a Notice of Redemption at Option of Holder Upon Triggering Event or
Notice of Redemption at Option of Holder Upon Major Transaction for any event or
condition giving rise to such right occurring after the Closing Date.
f. Purchaser shall have purchased 1,360 Series B Preferred
Shares held by the Palladin Group.
10. GOVERNING LAW; MISCELLANEOUS.
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a. GOVERNING LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York without regard
to the principles of conflict of laws. The parties hereto hereby submit to the
exclusive jurisdiction of the United States Federal Courts located in the
Borough of Manhattan in the State of New York with respect to any dispute
arising under this Agreement, the agreements entered into in connection herewith
or the transactions contemplated hereby or thereby.
b. COUNTERPARTS; SIGNATURES BY FACSIMILE. This Agreement
may be executed in one or more counterparts, all of which shall be considered
one and the same agreement and shall become effective when counterparts have
been signed by each party and delivered to the other party. This Agreement, once
executed by a party, may be delivered to the other party hereto by facsimile
transmission of a copy of this Agreement bearing the signature of the party so
delivering this Agreement.
c. HEADINGS. The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.
d. SEVERABILITY. If any provision of this Agreement shall
be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction.
e. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the
other agreements, documents and instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, none of the
parties 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 an instrument in writing signed by the party to be charged with
enforcement.
f. NOTICES. Any notices required or permitted to be given
under the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier (including a
recognized overnight delivery service) or by facsimile and shall be effective
five (5) days after being placed in the mail, if mailed by regular United States
mail, or upon receipt, if delivered personally or by courier (including a
recognized overnight delivery service) or by facsimile, in each case addressed
to a party. The addresses for such communications shall be:
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If to the Company:
Able Telcom Holding Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Able Telcom Holding Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to RGC:
▇/▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇ ▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
Cotton Communications, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esquire
Facsimile:
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Each party shall provide notice to the other party of any change of address.
g. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and assigns.
Neither the Company, RGC nor Purchaser shall assign this Agreement or any rights
or obligations hereunder without the prior written consent of the other.
Notwithstanding the foregoing, RGC may assign its rights hereunder to any person
that purchases the Retained Series B Preferred Shares or the Warrants in a
private transaction from RGC or to any of its "affiliates," as that term is
defined under the 1934 Act, without the consent of the Company or Purchaser.
h. THIRD PARTY BENEFICIARIES. This Agreement is intended
for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be
enforced by, any other person.
i. SURVIVAL. The representations and warranties of the
Company and Purchaser and the agreements and covenants set forth in Sections
1(a), 1(b), 1(c), 1(d), 3, 4, 5, 6 and 10 shall survive the closing hereunder
notwithstanding any due diligence investigation conducted by or on behalf of
RGC.
j. PUBLICITY. The Company, Purchaser and RGC shall have the
right to review a reasonable period of time before issuance of any press
releases, SEC, NASDAQ or NASD filings, or any other public statements with
respect to the transactions contemplated hereby; PROVIDED, HOWEVER, that the
Company shall be entitled, without the prior approval of each of RGC and
Purchaser, to make any press release or SEC, NASDAQ or NASD filings with respect
to such transactions as is required by applicable law and regulations (although
each of RGC and Purchaser shall be consulted by the Company in connection with
any such press release prior to its release and shall be provided with a copy
thereof and be given an opportunity to comment thereon).
k. FURTHER ASSURANCES. Each party shall do and perform, or
cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
l. REMEDIES. The Company and Purchaser acknowledge that a
breach by them of their respective obligations hereunder will cause irreparable
harm to RGC, by vitiating the intent and purpose of the transactions
contemplated hereby. Accordingly, the Company and Purchaser acknowledge that the
remedy at law for a breach of their respective obligations under this Agreement
will be inadequate and agree, in the event of a breach or threatened breach by
the Company and/or Purchaser of the provisions of this Agreement, that RGC shall
be entitled, in addition to all other available remedies in law or in equity, to
an injunction or injunctions to prevent
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or cure any breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions of this Agreement, without the necessity
of showing economic loss and without any bond or other security being required.
m. NO STRICT CONSTRUCTION. The language used in this
Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against
any party.
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IN WITNESS WHEREOF, Purchaser, RGC and the Company have caused
this Agreement to be duly executed as of the date first above written.
ABLE TELCOM HOLDING CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: President & CEO
RGC INTERNATIONAL INVESTORS, LDC
By: ▇▇▇▇ ▇▇▇▇ Capital Management, L.P., Investment Manager
By: RGC General Partner Corp., as General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
COTTON COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
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