Exhibit 10.1
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
This SERIES A PREFERRED STOCK PURCHASE AGREEMENT (this "Agreement") is
made and entered into as of December 20, 1996 by and among Able Telcom Holding
Corp., a Florida corporation (the "Corporation"), and the parties listed on the
Schedule of Investors attached to this Agreement as Exhibit A (each hereinafter
individually referred to as an "Investor" and collectively referred to as the
"Investors").
W I T N E S S E T H:
WHEREAS, the Corporation desires to sell to the Investors, and the
Investors desire to purchase from the Corporation, shares of the Corporation's
Series A Preferred Stock on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. AGREEMENT TO PURCHASE AND SELL STOCK.
1.1 Authorization. As of the Closing (as defined below) the
Corporation will have authorized the issuance, pursuant to the terms and
conditions of this Agreement, of (i) up to 1,200 shares of the Corporation's
Series A Preferred Stock, $.10 par value per share (the "Series A Stock") having
the rights, preferences, privileges and restrictions set forth in the Articles
of Amendment to the Articles of Incorporation of the Corporation attached to
this Agreement as Exhibit B (the "Articles of Amendment"), (ii) such number of
shares of the Corporation's Common Stock, par value $.001 per share (the "Common
Stock"), as may be issuable upon conversion of the Series A Stock (the
"Conversion Shares"), (iii) warrants to purchase an aggregate of 200,000 shares
of Common Stock (the "Warrants"), and (iv) 200,000 shares of Common Stock
issuable upon exercise of the Warrants (the "Warrant Shares").
1.2 Agreement to Purchase and Sell. Upon the terms and subject to
the conditions set forth herein, the Corporation agrees to sell to each Investor
at the Closing, and each Investor agrees, severally and not jointly, to purchase
from the Corporation at the Closing, the number of shares of Series A Stock set
forth beside such Investor's name on Exhibit A, at a price of $6,000 per share
(the "Purchase Price"). The shares of Series A Stock purchased and sold pursuant
to this Agreement will be collectively hereinafter referred to as the "Purchased
Shares".
1.3 Issuance of Warrants. The Corporation agrees to issue to each
Investor, at the time of the Closing, that portion of the Warrants set forth
beside such Investor's name on Exhibit A.
2. CLOSING.
2.1 The Closing. The purchase and sale of the Purchased Shares and
the issuance of the Warrants will take place at the offices of Holland & Knight,
Suite 1300, One East Broward Boulevard, Ft. Lauderdale, Florida 33301, at 1:00
p.m. Eastern Time, on December 20, 1996 or at such other time and place as the
Corporation and the Investors mutually agree upon (which time and place are
referred to in this Agreement as the "Closing"). At the Closing, the Corporation
will deliver to each Investor (A) a certificate, such certificate to be in the
form approved by the Investors prior to the Closing, representing the number of
Purchased Shares that such Investor has agreed to purchase hereunder as shown on
Exhibit A, against delivery of the full Purchase Price for such Purchased Shares
to the Corporation by the Investors, paid by wire transfer of funds to the
Corporation, and (B) that portion of the Warrants in the number set forth beside
such Investor's name on Exhibit A, such Warrants to be in the form of the "Form
of Warrant" attached hereto as Exhibit C.
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3. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION.
The Corporation hereby represents and warrants to each Investor that the
statements in the following paragraphs of this Section 3 are true and correct as
of the date hereof:
3.1 Organization, Good Standing and Qualification. The Corporation
and each of its subsidiaries other than the Excluded Subsidiaries (as defined
below), (each, a "Subsidiary" and collectively, the "Subsidiaries"), are
corporations duly organized, validly existing and in good standing under the
laws of the state in which they are incorporated and have all requisite
corporate power and authority to own their respective properties and assets and
to carry on their respective businesses as now conducted and as presently
proposed to be conducted. The Corporation and each Subsidiary are qualified to
do business as foreign corporations in each jurisdiction where failure to be so
qualified would have a material adverse effect on the financial condition,
business, prospects or operations of the Corporation and the Subsidiaries, taken
as a whole.
3.2 Capitalization. Immediately prior to the Closing the
capitalization of the Corporation will consist of the following:
(a) Preferred Stock. A total of 1,000,000 authorized shares of
preferred stock, $.10 par value per share (the "Preferred Stock"), consisting of
1,200 shares designated as Series A Preferred Stock, none of which will be
issued and outstanding. The rights, preferences and privileges of the Series A
Stock will be as stated in the Articles of Amendment and as provided by law.
(b) Common Stock. A total of 25,000,000 authorized shares of
Common Stock, of which 8,311,701 shares will be issued and outstanding.
(c) Options, Warrants, Reserved Shares. Except as described on
Schedule 3.2(c) hereof, there are no outstanding options, warrants, rights
(including conversion or preemptive rights) or agreements for the purchase or
acquisition from the Corporation of any shares of its capital stock or any
securities convertible into or ultimately exchangeable or exercisable for any
shares of the Corporation's capital stock. Apart from the exceptions noted on
Schedule 3.2(c) and the Investors' right of first refusal set forth in Section 5
hereof, no shares of the Corporation's outstanding capital stock, or stock
issuable upon exercise or exchange of any outstanding options, warrants or
rights, or other stock issuable by the Corporation, are subject to any rights of
first refusal or other rights to purchase such stock (whether in favor of the
Corporation or any other person), pursuant to any agreement or commitment to
which the Corporation is a party or by which it or any of its assets are bound.
Except as described on Schedule 3.2(c) hereof, the Corporation is not a party to
any shareholders' or other agreement affecting the rights of the holders of
Common Stock.
3.3 Subsidiaries. Except as described in the SEC Documents (as
defined below) or on Schedule 3.3 hereof, the Corporation does not presently own
or control, directly or indirectly, any interest in any other corporation,
partnership, trust, joint venture, association, or other entity.
3.4 Due Authorization. All corporate action on the part of the
Corporation, its officers, directors and shareholders necessary for the
authorization, execution, delivery of, and the performance of all obligations of
the Corporation under, this Agreement, the Registration Rights Agreement (as
defined below), the Warrants and all other documents, certificates or
instruments executed and delivered by the Corporation at the Closing
(collectively, the "Transaction Documents"), and the authorization, issuance,
reservation for issuance and delivery of all of the Purchased Shares, the
Conversion Shares, the Warrants and the Warrant Shares has been taken or will be
taken prior to the Closing, and the Transaction Documents constitute, or when
executed, will constitute, valid and legally binding obligations of the
Corporation, enforceable in accordance with their respective terms, except as
may be limited by (i) applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and (ii) the effect of rules of law governing the
availability of equitable remedies.
3.5 Valid Issuance of Stock.
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(a) The Purchased Shares and the Warrants, when issued, sold
and delivered in accordance with the terms of this Agreement for the
consideration provided for herein, will be duly and validly issued, fully paid
and nonassessable, free and clear of any liens, claims, encumbrances, or
preemptive rights. The Conversion Shares and the Warrant Shares have been duly
and validly reserved for issuance and, upon issuance in accordance with the
terms of the Articles of Amendment, will be duly and validly issued, fully paid
and nonassessable, free and clear of any liens, claims, encumbrances or
preemptive rights. The Purchased Shares shall have the rights, privileges and
preferences set forth in the Articles of
Amendment.
(b) Based on the representations and warranties made by the
Investors in Section 6 hereof, and assuming compliance by Cruttenden Roth (the
"Placement Agent") with all of the requirements of Regulation D governing the
offering of the Purchased Shares and the Warrants, the Purchased Shares
(assuming no unlawful distribution of the Purchased Shares or the Warrants by
Investors), the Conversion Shares and the Warrant Shares will be issued in full
compliance with the registration and prospectus delivery requirements of the
Securities Act of 1933 (as in effect on the date hereof), or in compliance with
applicable exemptions therefrom, and with the securities laws of those states of
the United States (as in effect on the date hereof) in which the addresses shown
on Exhibit A are located.
(c) The outstanding shares of the capital stock of the
Corporation are duly and validly issued, fully paid and nonassessable, and such
shares of such capital stock, and all outstanding options, warrants, convertible
notes and other securities of the Corporation, have been issued in full
compliance with the registration and prospectus delivery requirements of the
Securities Act of 1933, as amended (the "1933 Act"), or in compliance with
applicable exemptions therefrom, the registration and qualification requirements
of all applicable securities laws of states of the United States, or in
compliance with applicable exemptions therefrom, and all other provisions of
applicable securities laws of states of the United States, including, without
limitation, anti-fraud provisions.
3.6 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Corporation is required in connection with the consummation of the
transactions contemplated by this Agreement and all other Transaction Documents,
except for (i) any necessary filings and/or qualifications under applicable
state securities laws, and (ii) such other qualifications or filings under the
1933 Act and the regulations thereunder as may be required in connection with
the transactions contemplated by this Agreement. All such qualifications and
filings will, in the case of qualifications, be effective on the Closing and
will, in the case of filings, be made within the time prescribed by law.
3.7 Litigation. Except as set forth in the SEC documents (as defined
below) and as described on Schedule 3.7 hereof, there is no action, suit,
proceeding, claim, arbitration or investigation ("Action") pending (or, to the
best of the Corporation's or applicable Subsidiary's knowledge, currently
threatened) against the Corporation or any Subsidiary, its activities,
properties or assets or, to the best of the Corporation's or applicable
Subsidiary's knowledge, against any officer, director or employee of the
Corporation or any Subsidiary in connection with such officer's, director's or
employee's relationship with, or actions taken on behalf of, the Corporation or
any Subsidiary. To the best of the Corporation's knowledge, there is no factual
or legal basis for any such Action that might result, individually or in the
aggregate, in any material adverse change in the business, properties, assets,
financial condition, affairs or prospects of the Corporation. The Corporation or
any Subsidiary is not a party to or subject to the provisions of, any order,
writ, injunction, judgment or decree of any court or government agency or
instrumentality and, except as described on Schedule 3.7, there is no Action by
the Corporation or any Subsidiary currently pending. For purposes of this
Section 3, the "Corporation's or applicable Subsidiary's knowledge" shall mean
the actual knowledge of the directors or officers of the Corporation or the
applicable Subsidiary; the "Corporation's knowledge" shall mean the actual
knowledge of the directors or officers of the Corporation.
3.8 Status of Proprietary Assets.
(a) Ownership. The Corporation and each Subsidiary have full
title to and ownership of, or have license to, all patents, patent applications,
trademarks, service marks, trade names, copyrights, trade secrets, confidential
and proprietary information, compositions of matter, formulas, designs,
proprietary rights, know-how and processes (all of the foregoing collectively
hereinafter referred to as the "Proprietary Assets") necessary to enable them
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to carry on their respective businesses as now conducted and as presently
proposed to be conducted. To the best of the Corporation's knowledge, no third
party has any ownership right to, title to, interest in, claim in or lien on any
of the Corporation's or any Subsidiary's Proprietary Assets and the Corporation
has taken, and in the future the Corporation will use its best efforts to take,
all steps reasonably necessary to preserve its legal rights in, and the secrecy
of, all such Proprietary Assets, except those for which disclosure is required
for legitimate business or legal reasons.
(b) Licenses; Other Agreements. Except as set forth on
Schedule 3.8(b) hereof, the Corporation or any Subsidiary has not granted, and,
to the best of the Corporation's knowledge, there are not outstanding, any
options, licenses or agreements of any kind relating to any Proprietary Asset of
the Corporation or any Subsidiary, nor is the Corporation or any Subsidiary
bound by or a party to any option, license or agreement of any kind with respect
to any such Proprietary Assets. Except as set forth on Schedule 3.8(b), the
Corporation or any Subsidiary is not obligated to pay any royalties or other
payments to third parties with respect to the marketing, sale, distribution,
manufacture, license or use of any Proprietary Asset or any other property or
rights.
(c) No Infringement. To the best of the Corporation's
knowledge, the Corporation or any Subsidiary has not violated or infringed, and
is not currently violating or infringing, and the Corporation or any Subsidiary
has not received any communications alleging that the Corporation or any
Subsidiary (or any of their respective employees or consultants) has violated or
infringed or, by conducting its business as proposed, would violate or infringe,
any Proprietary Asset of any other person or entity.
3.9 Compliance with Law, Charter Documents and Material Agreements.
The Corporation or any Subsidiary is not in violation or default of any
provisions of its Articles of Incorporation or Bylaws, both as amended, except
for any violations that individually and in the aggregate would not have a
material adverse effect on the Corporation and its Subsidiaries, taken as a
whole; the Corporation or any Subsidiary is in compliance with all applicable
statutes, laws, regulations and executive orders of the United States of America
and all states, foreign countries or other governmental bodies and agencies
having jurisdiction over its business or properties. The Corporation or any
Subsidiary has not received any notice of any violation of such statutes, laws,
regulations or orders which has not been remedied prior to the date hereof. The
execution, delivery and performance of this Agreement and the other Transaction
Documents, and the consummation of the transactions contemplated hereby or
thereby, will not result in any such violation or be in conflict with or
constitute, with or without the passage of time or the giving of notice or both,
(i) a violation of either the Corporation's or any Subsidiary's Articles of
Incorporation or Bylaws, both as amended, or, (ii) to the best of the
Corporation's knowledge, a violation of any statutes, laws, regulations or
orders, or (iii) a breach of or conflict with any material agreement to which
the Corporation or any Subsidiary is a party or by which any of them is bound,
or (iv) an event which results in the creation of any lien, charge or
encumbrance upon any asset of the Corporation or any Subsidiary.
3.10 SEC Documents. The Corporation has filed with the United States
Securities and Exchange Commission (the "SEC") its Annual Report on Form 10-K
and its Annual Report to Shareholders for the year ended October 31, 1995, all
Quarterly Reports on Form 10-Q due to be filed with the SEC since October 31,
1995, all necessary Current Reports on Form 8-K since October 31, 1995, and the
Corporation's Proxy Statement for its 1995 Annual Meeting of Shareholders
(collectively, the "SEC Documents"). Each of the SEC Documents, as of the date
the same were filed with the SEC, conformed in all material respects to the
requirements of the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder, and, as of their filing date, none of such documents
contained an untrue statement of material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. Except as set forth on Schedule 3.10 hereof, the Company is not
aware of any event which would require the filing of a Form 8-K after the date
hereof and all material agreements required to be filed as exhibits to the SEC
Documents have been filed as required. The Corporation and each Subsidiary is
not presently in breach, nor, to the Corporation's knowledge, is any other party
to any such material agreement in breach, of any such material agreement.
3.11 Registration Rights. Except as provided in the Registration
Rights Agreement and as described on Schedule 3.11 hereof, the Corporation has
not granted or agreed to grant to any person or entity any rights (including
piggyback registration rights) to have any securities of the Corporation
registered with the SEC or any other governmental authority.
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3.12 Financial Statements. The consolidated financial statements,
including the related notes, of the Corporation and the Subsidiaries included in
the SEC Documents (the "Financial Statements") were prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, and fairly present the financial position and results of
operations of the Corporation and the Subsidiaries, on a consolidated basis, at
the dates and for the periods presented. The Corporation and each Subsidiary
make and keep accurate books and records reflecting their respective assets and
maintain internal accounting controls that provide reasonable assurance that (i)
transactions are executed in accordance with management's authorization, (ii)
transactions are recorded as necessary to permit preparation of consolidated
Financial Statements in accordance with generally accepted accounting principles
and to maintain accountability for the assets of the Corporation and each
Subsidiary, (iii) access to the assets of the Corporation and each Subsidiary is
permitted only in accordance with management's authorization, and (iv) the
recorded accountability for assets of the Corporation and of each Subsidiary is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. The Corporation and each Subsidiary have
good and marketable title to all of the assets set forth on the most recent
consolidated balance sheet included in the Financial Statements, except for such
assets as have been used, sold or transferred in the ordinary course of business
since such date and subject to such liens, claims, security interests and other
encumbrances arising in the ordinary course of business and that do not
materially affect the Corporation's or such Subsidiary's use of such properties
and assets.
3.13 ERISA Plans. Except as set forth in the SEC Documents and
except for those described on Schedule 3.13 hereof, the Corporation and each
Subsidiary does not have any Employee Pension Benefit Plan as defined in Section
3 of the Employee Retirement Income Security Act of 1974, as amended.
3.14 Insurance. The Corporation and each Subsidiary have in full
force and effect fire and casualty insurance policies, with extended coverage,
sufficient in amount (subject to reasonable deductibles) to allow them to
replace any of their respective properties that might be damaged or destroyed.
3.15 Tax Returns and Payments. The Corporation has timely filed all
tax returns and reports required by law, except where the failure to do so did
not or would not have a material adverse effect on the Corporation's financial
condition or results of operations. All tax returns and reports of the
Corporation are true and correct in all material respects. The Corporation has
paid all taxes and other assessments due, except those, if any, currently being
contested by it in good faith.
3.16 Labor Agreements and Actions. The Corporation is not bound by
or subject to any contract, commitment or arrangement with any labor union, and
to the Corporation's best knowledge, no labor union has requested, sought or
attempted to represent any employees, representatives or agents of the
Corporation. There is no strike or other labor dispute involving the Corporation
pending nor, to the Corporation's best knowledge, threatened, nor is the
Corporation aware of any labor organization activity involving its employees.
3.17 Environmental Matters. Except as set forth in the SEC
Documents and on Schedule 3.17 hereof:
(a) During the period that the Corporation or any Subsidiary
has leased or owned its properties or owned or operated any facilities, there
have been no material disposals, releases or threatened releases of Hazardous
Materials (as defined below) on, from or under such properties or facilities.
The Corporation has no knowledge of any material disposals, releases or
threatened releases of Hazardous Materials on, from or under any of such
properties or facilities, which may have occurred prior to the Corporation or
any Subsidiary having taken possession of any of such properties or facilities.
For purposes of this Agreement, the terms "disposal," "release" and "threatened
release" shall have the definitions assigned thereto by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. ss.
9601 et seq., as amended ("CERCLA"). For the purposes of this Section "Hazardous
Materials" shall mean any hazardous or toxic substance, material or waste which
is or becomes prior to the Closing regulated under, or defined as a "hazardous
substance," "pollutant," "contaminant," "toxic chemical," "hazardous material,"
"toxic substance," or "hazardous chemical" under (1) CERCLA; (2) the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. Section 11001 et seq.; (3)
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; (4)
the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; (5) the
Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.; (6)
regulations promulgated
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under any of the above statutes; or (7) any applicable state or local statute,
ordinance, rule, or regulation that has a scope or purpose similar to those
statutes identified above.
(b) The Corporation or any Subsidiary has not received any
notice of, nor, to the best of the Corporation's knowledge, are any of the
Corporation's or any Subsidiary's properties or facilities in violation of any
federal, state, or local law, ordinance, regulation, or order relating to
industrial hygiene or to the environmental conditions on, under or about such
properties or facilities, including, but not limited to, soil and ground water
condition. During the time that the Corporation or any Subsidiary has owned or
leased its properties and facilities, neither the Corporation or any Subsidiary
nor, to the Corporation's knowledge, any third party, has used, generated,
manufactured or stored on, under or about such properties or facilities or
transported to or from such properties or facilities any Hazardous Materials.
(c) During the time that the Corporation or any Subsidiary has
owned or leased its properties and facilities, there has been no litigation
brought or threatened against the Corporation or any Subsidiary, or any
settlement reached by the Corporation or any Subsidiary with, any party or
parties alleging the presence, disposal, release or threatened release of any
Hazardous Materials on, from or under any of such properties or facilities.
(d) During the period that the Corporation or any Subsidiary
has owned or leased its properties and facilities, no Hazardous Materials have
been transported from such properties or facilities to any site or facility now
listed or proposed for listing on the National Priorities List, at 40 C.F.R.
Part 300, or any list with a similar scope or purpose published by any state
authority.
3.18 Trading on Nasdaq. The Common Stock is authorized for quotation
on the Nasdaq National Market or the Nasdaq SmallCap Market and trading in the
Common Stock on Nasdaq has not been suspended.
3.19 Solicitation; Offering. Neither the Corporation or any
Subsidiary, nor any of their respective affiliates or, to such entity's
knowledge, any person acting on its or their behalf, (i) has engaged in any form
of general solicitation or general advertising (within the meaning of Regulation
D under the 1933 Act) in connection with the offer or sale of the Series A Stock
or (ii) has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under any circumstances that would
require registration of the Series A Stock under the 1933 Act.
3.20 Fees. The Corporation is not obligated to pay any compensation
or other fees to any broker, agent or other representative in connection with
this Agreement or the transactions contemplated hereby other than the Placement
Agent.
3.21 Excluded Subsidiaries. With respect to Georgia Electric Company
and Dial Communications, Inc. (the "Excluded Subsidiaries"), the representations
and warranties which were made to the Corporation in the respective stock
purchase agreements in which the Corporation acquired all of the issued and
outstanding shares of common stock of each of the Excluded Subsidiaries, are
true and correct as though made as of the date hereof without regard to any
dates set forth therein.
3.22 Changes Since Balance Sheet Date. Except as set forth on
Schedule 3.22 hereof, since the date of the most recent balance sheet included
in the Financial Statements, there has not been:
(a) to the Corporation's knowledge, any event or condition of any
character which would materially and adversely affect the assets, properties,
financial condition, operating results or business of the Corporation and the
Subsidiaries, taken as a whole; or
(b) any indebtedness or liabilities incurred in excess of $100,000
individually or $500,000 in the aggregate.
3.23 Shareholder Approval.The Non-Quantitative Designation Criteria
for Nasdaq National Market Issuers do not require shareholder approval for the
issuance of the Series A Stock or the Warrants.
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4.AGREEMENTS OF THE CORPORATION. The Corporation agrees with the Investors
that, at all times subsequent to the Closing up to and including the date which
is three years from the date of the Closing, it will comply with the following
agreements:
4.1 Financial and Other Information. The Corporation will send to
the Investors, (i) promptly following the filing thereof with the SEC, its
annual reports on Form 10-K, quarterly reports on Form 10-Q, any current reports
on Form 8-K, and proxy statements and (ii) promptly following the issuance
thereof, any press releases.
4.2 [INTENTIONALLY OMITTED]
4.3 Reservation of Shares.
(a) The Corporation will at all times have authorized and
reserved for issuance a sufficient number of shares of Common Stock in order to
provide for the issuance of the Conversion Shares. In the event that, upon
conversion of the Series A Stock, the Corporation has not authorized and
reserved a sufficient number of shares of Common Stock to effect such conversion
(a "Conversion Default"), the Corporation shall issue and deliver, in accordance
with the Instruction Letter, to the holder or holders of such Series A Stock, on
a pro rata basis, all of the shares of Common Stock then available for issuance.
The Corporation will immediately thereafter issue a written notice of such
Conversion Default to all holders of Series A Stock and will use its best
efforts to authorize an appropriate additional number of shares of Common Stock.
In the event that a Conversion Default remains outstanding for
a period of thirty (30) days, each holder of Series A Stock shall have the
right, effective upon written notice to the Corporation (a "Redemption Notice"),
to require the Corporation to redeem any or all such Series A Stock at a price
equal to the Liquidation Preference (as defined in the Articles of Amendment),
plus any accrued and unpaid dividends, for each share of Series A Stock being
redeemed, plus the product of the number of shares of Common Stock into which
the shares of Series A Stock are then convertible multiplied by an amount equal
to the difference between (x) the average closing bid price quoted on a share of
Common Stock on the Nasdaq National Market, or other principal securities market
on which the Common Stock is traded, for the three (3) trading days immediately
following the date of the Redemption Notice (or if the Corporation's Common
Stock is not traded or listed on the Nasdaq National Market, or other principal
securities market, the average of the closing bid prices in the over-the-counter
market on such days as reported by Nasdaq or any comparable system, or if not so
reported, as reported by any New York Stock Exchange member firm selected by the
Corporation for such purpose) and (y) the lesser of the then applicable Floating
Conversion Price (as defined in the Articles of Amendment, except that the term
"Redemption Notice" contained in the definition of Floating Conversion Price
shall refer to the Redemption Notice referred to in this Section 4.3(a)) and the
Fixed Conversion Price (as defined below), payable in each such case within five
(5) days of receipt by the Corporation of such Redemption Notice. Shares of
Series A Stock that have not been so redeemed following a Conversion Default
shall continue to be governed by the provisions of this Agreement, the Articles
of Amendment and the Registration Rights Agreement. The "Fixed Conversion Price"
is $9.82, which is an amount equal to 125% of the average closing bid price for
a share of the Corporation's Common Stock on the Nasdaq National Market for the
three trading days immediately preceding the date preceding the date on which
the shares of Series A Stock are issued.
(b) The Corporation will at all times have authorized and
reserved for issuance a sufficient number of shares of Common Stock in order to
provide for the issuance of the Warrant Shares. In the event that, upon exercise
of the Warrants, the Corporation has not authorized and reserved a sufficient
number of shares of Common Stock to effect such exercise (a "Warrant Exercise
Default"), the Corporation shall issue and deliver, in accordance with the
Instruction Letter, to the holder or holders of such Warrants, on a pro rata
basis, all shares of Common Stock then available
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for issuance. The Corporation will immediately thereafter issue a notice of such
Warrant Exercise Default to all holders of Warrants and will use its best
efforts to authorize an appropriate additional number of shares of Common Stock.
In the event that a Warrant Exercise Default remains
outstanding for a period of thirty (30) days, each holder of Warrants shall have
the right, effective upon written notice to the Corporation (a "Purchase
Notice"), to require the Corporation to redeem any or all such Warrants at a
price per underlying Warrant Share equal to the difference between (x) the
average closing bid price quoted on a share of Common Stock on the Nasdaq
National Market, or other principal securities market on which the Common Stock
is traded, for the three (3) business days immediately following the date of the
Purchase Notice (or if the Corporation's Common Stock is not traded or listed on
the Nasdaq National Market, or other principal securities market, the average of
the closing bid prices in the over-the-counter market on such days as reported
by Nasdaq or any comparable system, or if not so reported, as reported by any
New York Stock Exchange member firm selected by the Corporation for such
purpose) and (y) $9.82, as adjusted pursuant to the terms of the Warrants
(provided, however, that the difference between (x) and (y) is positive),
payable in each such case within five (5) days of receipt by the Corporation of
such Purchase Notice.
4.4 Use of Proceeds. The Corporation will use the proceeds of the sale
of the Series A Stock for general corporate purposes.
4.5 Use of Investor Names. The Corporation will refrain from using,
directly or indirectly, the name of any Investor in any advertisement,
announcement, press release or other similar communication unless it has
received the prior written consent of such Investor with respect to the specific
use contemplated.
5. INVESTORS' RIGHT OF FIRST REFUSAL. So long as any shares of Series A
Stock are issued and outstanding, if the Corporation conducts a private offering
of any equity securities, the Corporation shall offer the Investors that still
hold such shares of Series A Stock the right to purchase all of such equity
securities for cash at an amount equal to the price or other consideration for
which such securities are to be sold. The Corporation shall provide written
notice thereof to such Investors, which notice shall describe the securities
proposed to be sold and specify the number, price and payment terms. Such
Investors may accept the Corporation's offer on a pro rata basis, in proportion
to the relative number of shares of Series A Stock that each such Investor then
holds, or any lesser number of securities, by delivering written notice thereof
to the Corporation within ten (10) days after such Investor's receipt of written
notice from the Corporation (such tenth day hereinafter referred to as the
"Notice Date"). If any Investor chooses not to purchase all or any portion of
the securities it is entitled to purchase under this Section 5, then the
Corporation shall notify in writing all of the other eligible Investors that
such securities are available for purchase by such remaining Investors on a pro
rata basis, in proportion to the number of shares of Series A Stock that each
such remaining Investor holds in relation to those shares of Series A Stock held
by all of the other remaining Investors. Each such remaining Investor shall
notify the Corporation within five (5) days after its receipt of the
Corporation's written notice of its intent to purchase such remaining
securities. In the event that all of such securities are not purchased by the
Investors pursuant to this Section 5, the Corporation may at any time prior to
sixty (60) days after the Notice Date, offer and sell to any third party the
number of securities not agreed to be purchased by such eligible Investors, at a
price and on payment terms no less favorable to the Corporation than those set
forth in the written notice by the Corporation to the Investors. However, if
such third party sale or sales are not consummated within such sixty (60) day
period, the Corporation shall not sell such securities as have not been
purchased within such period without again complying with this Section 5.
6. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTORS. Each
Investor hereby represents and warrants to, and agrees with, the Corporation,
severally and not jointly, that:
6.1 Authorization. This Agreement constitutes such Investor's valid
and legally binding obligation, enforceable in accordance with its terms except
as may be limited by (i) applicable bankruptcy, insolvency, reorganization or
other laws of general application relating to or affecting the enforcement of
creditors' rights generally and (ii) principles governing the availability of
equitable remedies. Each Investor represents that such Investor has full power
and authority to enter into this Agreement, the Registration Rights Agreement,
and all other Transaction Documents to which such Investor is a party and to
consummate the transactions contemplated hereby and thereby.
8
6.2 Purchase for Own Account. The Purchased Shares to be purchased
by such Investor hereunder will be acquired for investment for such Investor's
own account, not as a nominee or agent, and not with a view to the public resale
or distribution thereof within the meaning of the 1933 Act, and such Investor
has no present intention of selling, granting any participation in, or otherwise
distributing the same; provided, however, that in making such representations,
the Investor does not agree to hold the Purchased Shares for any minimum or
other specific term and reserves the right to dispose of the Purchased Shares at
any time in accordance with the other provisions of this Agreement and with
Federal and state securities laws applicable to such disposition. If not an
individual, such Investor also represents that such Investor has not been formed
for the specific purpose of acquiring the Purchased Shares.
6.3 Disclosure of Information. Such Investor or its representative
has received or has had full and complete access to all the information it
considers necessary or appropriate and material to make an informed investment
decision with respect to the Purchased Shares to be purchased by such Investor
under this Agreement, including, without limitation, copies of the SEC
Documents. The foregoing, however, does not in any way limit or modify the
representations and warranties made by the Corporation in Section 3. Each
Investor acknowledges that it is acquiring the Purchased Shares without being
furnished any offering literature or prospectus.
6.4 Accredited Investor Status. Such Investor is an "accredited
investor" within the meaning of Regulation D promulgated under the 1933 Act.
6.5 Restricted Securities. Such Investor understands that the
Purchased Shares are characterized as "restricted securities" under the 1933 Act
inasmuch as they are being acquired from the Corporation in a transaction not
involving a public offering and that under the 1933 Act and applicable
regulations thereunder such securities may be resold without registration under
the 1933 Act only in certain limited circumstances. In this connection, such
Investor represents that such Investor is familiar with Rule 144 of the SEC, as
presently in effect, and understands the resale limitations imposed thereby and
by the 1933 Act. Such Investor understands that the Corporation is under no
obligation to register any of the securities sold hereunder except as provided
in the Registration Rights Agreement.
6.6 Further Limitations on Disposition. Without in any way limiting
the representations set forth above, such Investor further agrees not to make
any disposition of all or any portion of the Purchased Shares or the Conversion
Shares unless and until:
(i) there is then in effect a registration statement under the
1933 Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(ii) such Investor shall have furnished the Corporation, at
the expense of the Investor, with an opinion of counsel, reasonably satisfactory
to the Corporation, that such disposition will not require registration of such
securities under the 1933 Act; and
(iii) with respect to the Purchased Shares only, the
Corporation has consented in writing to such disposition, which consent will not
be unreasonably withheld.
Notwithstanding the provisions of paragraphs (i), (ii) and (iii)
above, no such registration statement or opinion of counsel (unless required by
the Transfer Agent with respect to the Conversion Shares) shall be required: (i)
for any transfer of any Purchased Shares or Conversion Shares in compliance with
SEC Rule 144 or Rule 144A; (ii) for any transfer of any Purchased Shares or
Conversion Shares by an Investor that is a partnership or a corporation to (A) a
partner of such partnership or an "affiliate" (as such term is defined in
Regulation D under the 1933 Act) of such corporation (in which case no consent
of the Corporation as described in paragraph (iii) above shall be required), (B)
a retired partner of such partnership who retires after the date hereof, or (C)
the estate of any such partner or shareholder; or (iii) for the transfer by
gift, will or intestate succession by any Investor to his or her spouse or
lineal descendants or ancestors or any
9
trust for any of the foregoing; provided that in each of the foregoing cases the
transferee agrees in writing to be subject to the terms of this Section 6 (other
than Section 6.4) to the same extent as if the transferee were an original
Investor hereunder.
6.7 Legends.
(a) It is understood that the certificates evidencing the
Conversion Shares and the Warrant Shares will bear the legends set forth below:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT
TO REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT
THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
(b) The legend set forth in (a) above shall be removed by the
Corporation from any certificate evidencing Purchased Shares or Conversion
Shares or Warrant Shares at such time as a Registration Statement is in effect
with respect to such securities or upon delivery to the Corporation of an
opinion by counsel, reasonably satisfactory to the Corporation, that such
security can be freely transferred in a public sale without such a registration
statement being in effect and that such transfer will not jeopardize the
exemption or exemptions from registration pursuant to which the Corporation
issued the Purchased Shares or Conversion Shares or Warrant Shares.
7.CONDITIONS TO INVESTORS' OBLIGATIONS AT CLOSING. The obligations of each
Investor under Section 2 of this Agreement are subject to the fulfillment or
waiver, on or before the Closing, of each of the following conditions, the
waiver of which shall not be effective against any Investor who does not consent
to such waiver, which consent may be given by written, oral or telephone
communication to the Corporation, its counsel or to special counsel to the
Investors:
7.1 Representations and Warranties True. Each of the representations
and warranties of the Corporation contained in Section 3 shall be true and
correct on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
7.2 Performance. The Corporation shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement
that are required to be complied with or performed by it on or before the
Closing and shall have obtained all approvals, consents and qualifications
necessary to complete the purchase and sale described herein.
7.3 Articles of Amendment Effective. The Articles of Amendment shall
have been duly adopted by the Corporation by all necessary corporate action of
its Board of Directors and shareholders, and shall have been duly filed with and
accepted by the Florida Department of State.
7.4 Compliance Certificate. The Corporation shall have delivered to
each Investor at the Closing a certificate signed on its behalf by its
President, Chief Executive Officer or Chief Financial Officer certifying that
the conditions specified in Sections 7.1, 7.2 and 7.3 have been fulfilled.
7.5 Securities Exemptions. The offer and sale of the Purchased
Shares to the Investors pursuant to this Agreement shall be exempt from the
registration requirements of the 1933 Act and/or the qualification requirements
of all applicable state securities laws.
10
7.6 Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to each Investor and to the Investors' special counsel, and they shall
each have received all such counterpart originals and certified or other copies
of such documents as they may reasonably request. Such documents shall include
(but not be limited to) the following:
(a) Certified Charter Documents. A copy of the Articles of
Incorporation and the Bylaws of the Corporation (in each case as amended through
the date of the Closing), certified by the Secretary of the Corporation as true
and correct copies thereof as of the Closing.
(b) Secretary's Incumbency Certificate. A certificate of the
Secretary or an Assistant Secretary or other officer of the Corporation
certifying the names of the officers of the Corporation authorized to sign this
Agreement, the Registration Rights Agreement, the certificates for the Purchased
Shares and the other documents, instruments or certificates to be delivered
pursuant to this Agreement by the Corporation or any of its officers, together
with the true signatures of such officers.
(c) Corporate Actions. A copy of the resolutions of the Board
of Directors and, if required, the shareholders of the Corporation adopting the
Articles of Amendment and providing for the authorization of the Series A Stock,
the Warrants, the Conversion Shares and the Warrant Shares, the approval of this
Agreement and all other Transaction Documents, the issuance of the Purchased
Shares, the Warrants, the Conversion Shares and the Warrant Shares and the other
matters contemplated hereby.
(d) Good Standing Certificates. A good standing certificate
issued by the Florida Department of State dated within ten (10) days of the
Closing.
7.7 No Material Change. There shall have been, in the reasonable
judgment of such Investor, no material adverse change in the business, affairs,
prospects, operations, properties, assets or condition of the Corporation.
7.8 Opinion of Corporation Counsel. Each Investor shall have
received an opinion from Holland & Knight, counsel for the Corporation, dated as
of the date of the Closing, in the form attached hereto as Exhibit D.
7.9 Opinion of Hunton & Williams. Each Investor shall have received
an opinion from Hunton & Williams, New York, dated as of the date of the
Closing, in the form attached as Exhibit E.
7.10 Registration Rights Agreement. The Corporation and each
Investor shall have executed and delivered the Registration Rights Agreement in
the form attached to this Agreement as Exhibit F (the "Registration Rights
Agreement").
7.11 Issuance of Warrants. The Corporation shall have executed and
delivered Warrants in the form attached as Exhibit C to each Investor in the
amounts noted on Exhibit A.
7.12 Management Lock-Up Agreements. The Corporation shall have
caused Daniel Osborne and William J. Mercurio to have executed and delivered the
Lock-Up Agreements in the form attached as Exhibit G.
7.13 Market Conditions. There shall not have occurred: (i) any
suspension of trading generally on any national securities exchange or
association; (ii) a general moratorium on commercial banking activities in New
York; or (iii) any outbreak or escalation of hostilities; or (iv) any adverse
change in financial markets or any other crisis or calamity; which, in the sole
judgment of such Investor, makes the purchase of the Series A Stock inadvisable.
8. CONDITIONS TO THE CORPORATION'S OBLIGATIONS AT CLOSING. The obligations
of the Corporation to each Investor under this Agreement are subject to the
fulfillment or waiver on or before the Closing of each of the following
conditions by such Investor:
11
8.1 Representations and Warranties. The representations and
warranties of such Investor contained in Section 6 shall be true and correct on
the date of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
8.2 Payment of Purchase Price. Each Investor shall have delivered to
the Corporation the purchase price specified for such Investor on Exhibit A in
accordance with the provisions of Section 2 hereof.
8.3 Articles of Amendment Effective. The Articles of Amendment shall
have been duly adopted by the Corporation by all necessary corporate action of
its Board of Directors and shareholders, and shall have been duly filed with and
accepted by the Secretary of State of the State of Florida.
8.4 Securities Exemptions. The offer and sale of the Purchased
Shares to the Investors pursuant to this Agreement shall be exempt from the
registration requirements of the 1933 Act and the registration and/or
qualification requirements of all other applicable state securities laws.
8.5 Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to the Corporation and to the Corporation's legal counsel, and the
Corporation shall have received all such counterpart originals and certified or
other copies of such documents as it may reasonably request.
9. INDEMNIFICATION.
9.1 Indemnity by Corporation. The Corporation agrees to indemnify
and hold harmless each Investor, and its officers, employees, shareholders,
affiliates and agents, from and against any loss, claim, liability, damage or
expense, including reasonable legal fees and expenses (collectively, "Losses"),
as incurred, that arise out of or in connection with any breach by the
Corporation, or any of the Subsidiaries, of any of their respective
representations, warranties or agreements set forth in this Agreement or any
other Transaction Document, except that any person or entity seeking
indemnification hereunder will not be entitled to such indemnification to the
extent that any such Loss is the result of the negligence or willful misconduct
on the part of such person or
entity.
9.2 Indemnity by Investors. Each Investor agrees, severally and not
jointly, to indemnify and hold harmless the Corporation, the Subsidiaries, and
each of their respective officers, employees, shareholders, affiliates and
agents, from and against any Losses, as incurred, that arise out of or in
connection with any breach by such Investor of any of its representations,
warranties or agreements set forth in this Agreement or any other Transaction
Document, except that any person or entity seeking indemnification hereunder
will not be entitled to such indemnification to the extent that any such Loss is
the result of the negligence or willful misconduct on the part of such person or
entity.
10. MISCELLANEOUS.
10.1 Survival. The representations, warranties, covenants and
indemnities of the Corporation and the Investors contained in or made pursuant
to this Agreement shall survive the execution and delivery of this Agreement and
the Closing until the earlier of the third anniversary of the date hereof or the
conversion of all of the Purchased Shares into Common Stock (as provided in the
Articles of Amendment) and shall in no way be affected by any investigation of
the subject matter thereof made by or on behalf of any of the Investors, their
counsel or the Corporation, as the case may be.
10.2 Successors and Assigns. The Investors may assign their rights
hereunder to any transferee permitted by the terms of Section 6.6 hereof;
provided, however, that any such assignment shall not diminish the rights of the
Investors with respect to any shares of Series A Stock or Warrants still owned
by the Investors. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties.
10.3 Governing Law. This Agreement shall be governed by and
construed under the internal laws of the State of New York, without reference to
principles of conflict of laws or choice of laws.
12
10.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.5 Headings. The headings and captions used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
10.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and addressed to the
party to be notified at the address or facsimile number indicated for such party
on Exhibit A or, in the case of the Corporation, at 1601 Forum Place, Suite
1110, West Palm Beach, Florida 33401, attention Daniel Osborne, Chief Accounting
Officer, or at such other address as any Investor or the Corporation may
designate by giving ten (10) days advance written notice to all other parties.
Such notice shall be deemed effectively given upon (i) personal delivery to the
party to be notified or (ii) delivery by overnight courier to the party to be
notified or (iii) on the fifth (5th) business day following deposit with the
United States Post Office, by registered or certified mail, postage prepaid or
(iv) delivery via facsimile and confirmation generated by the sender's facsimile
machine.
10.7 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Corporation and the holders
of Purchased Shares, Conversion Shares, Warrants and/or Warrant Shares
representing at least 66.6% of the aggregate number of shares of Common Stock
into which the Purchased Shares then are convertible and/or have been converted
and for which the Warrants are exercisable or have been exercised (excluding any
of such shares that have been sold to the public or pursuant to SEC Rule 144).
Any amendment or waiver effected in accordance with this subsection 10.7 shall
be binding upon each holder of any Purchased Shares, Conversion Shares, Warrants
and/or Warrant Shares at the time outstanding, each future holder of such
securities, and the Corporation;provided, however, that no such amendment or
waiver that adversely affects the rights of any holder of Purchased Shares,
Conversion Shares, Warrants or Warrant Shares shall be effective without the
written consent of all of such holders, and that no condition set forth in
Section 5 may be waived with respect to any Investor who does not consent
thereto.
10.8 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
10.9 Entire Agreement. This Agreement, together with all exhibits
and schedules hereto, all of the other Transaction Documents, and the other
agreements to be delivered by the parties at the Closing, constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings duties or obligations between the parties with
respect to the subject matter hereof.
10.10 Further Assurances. From and after the date of this Agreement,
upon the request of any Investor or the Corporation, the Corporation and the
Investors shall execute and deliver such instruments, documents or other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement.
10.11 Independent Nature of Investors' Rights. The obligations of
each Investor hereunder are several and not joint, and neither Investor shall be
responsible for the obligations of the other Investor hereunder. Nothing
contained herein or in any other agreement or document to be delivered at the
Closing, and no action taken by the Investors pursuant hereto or thereto, shall
be deemed to constitute the Investors as a partnership, an association, a joint
venture or
13
any other kind of entity. Each Investor shall be entitled to protect and enforce
its rights arising out of this Agreement and out of any such other agreement or
document and it shall not be necessary for the other Investor to be joined as an
additional party in any proceeding for such purpose.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
THE CORPORATION: THE INVESTORS:
ABLE TELCOM HOLDING CORP., CREDIT SUISSE FIRST BOSTON
a Florida corporation CORPORATION
By: /s/William J. Mercurio By: ____________________________________
---------------------------
William J. Mercurio Print Name:
President and Chief Title:________________________
Executive Officer
SILVERTON INTERNATIONAL FUND LIMITED
By: ______________________________
Print Name:
Title:_______________________
14
SERIES A PREFERRED STOCK PURCHASE AGREEMENT
LIST OF SCHEDULES AND EXHIBITS
SCHEDULES:
Schedule 3.2(c) Outstanding Options, Warrants, Rights and Agreements
Schedule 3.3 Ownership Interests of Corporation
Schedule 3.7 Litigation
Schedule 3.8(b) Licenses
Schedule 3.10 Material Agreements Not Filed with SEC
Schedule 3.11 Securities Rights Granted
Schedule 3.13 Employee Benefits Plans
Schedule 3.17 Environmental Matters
Schedule 3.21 Excluded Subsidiaries
Schedule 3.22 Changes Since Balance Sheet Date
EXHIBITS:
Exhibit A - Schedule of Investors
Exhibit B - Articles of Amendment to Articles of Incorporation
Exhibit C - Form of Warrant
Exhibit D - Form of Opinion of Corporation Counsel
Exhibit E - Form of Opinion of Hunton & Williams - New York
Exhibit F - Form of Registration Rights Agreement
Exhibit G - Form of Lock-Up Agreement
EXHIBIT A
Schedule of Investors
Number of
Shares
of Common
Shares of Series A Stock
Stock Purchased Subject to Purchase
Investor Warrant Price
- -------- ------- -----
Credit Suisse First Boston
Corporation
11 Madison Avenue
3rd Floor
New York, NY 10010 500 100,000 $3,000,000
Facsimile No. (212) 325-8102
Silverton International
Fund Limited
129 Front Street
Hamilton HM12 Bermuda 500 100,000 $3,000,000
Facsimile No. (203) 625-8676
TOTALS: 1,000 200,000 $6,000,000
=========================== ================= =============== ==============
EXHIBIT B
Articles of Amendment to Articles of Incorporation
See Attached
EXHIBIT C
Form of Warrant
See Attached
EXHIBIT D
Form of Opinion of Corporation's Counsel
See Attached
EXHIBIT E
Form of Opinion of Hunton & Williams
See Attached
EXHIBIT F
Form of Registration Rights Agreement
See Attached
EXHIBIT G
Form of Lock-Up Agreement
See Attached