Exhibit 10.1
AMENDMENT NO. 2
to
CONVERTIBLE PREFERRED STOCK AND WARRANTS PURCHASE AGREEMENT
between
Atlantic Technology Ventures, Inc.
and
the Investors Signatory Hereto
THIS AMENDMENT NO. 2 TO CONVERTIBLE PREFERRED STOCK AND WARRANTS
PURCHASE AGREEMENT is entered into effective as of January 9, 2001 (the
"Amendment"), between the Investors signatory hereto (each an "Investor" and
together the "Investors"), and Atlantic Technology Ventures, Inc., a corporation
organized and existing under the laws of the State of Delaware (the "Company").
WHEREAS, the parties entered into that certain Convertible Preferred
Stock and Warrants Purchase Agreement dated September 28, 2000, as amended on
October 31, 2000 (the "Purchase Agreement"), and desire to amend certain terms
of the Purchase Agreement as provided herein;
WHEREAS, the parties entered into that certain Stock Repurchase
Agreement dated December 4, 2000 (the "Repurchase Agreement"), which provided
for, among other things, an option in favor of the Company to repurchase the
remaining shares of Series B Preferred Stock held by the Investors, which option
was extended by letter agreement dated December 28, 2000 (the "Repurchase
Option");
WHEREAS, the parties desire to terminate the Repurchase Option as
provided herein;
NOW, THEREFORE, in consideration of the mutual promises herein, and
other good and valuable consideration, the receipt and sufficiency of which the
parties hereby acknowledge, the parties hereto agree as follows:
The Purchase Agreement and Repurchase Agreement shall be amended as
follows:
1. Defined Terms. Terms that are used herein with initial capital
letters and are not otherwise defined herein will have the meanings given to
them in the Purchase Agreement. The definitions of the following terms contained
in Article I of the Purchase Agreement are hereby amended and restated in their
entirety as follows:
"Initial Warrants" shall mean the Warrants issued on the Initial
Closing Date, as amended to reset the exercise price to equal the lower of (a)
$1.00 or (b) 110% of the closing bid price of the Common Stock on the last
trading date immediately preceding the 180th day following the date hereof.
The definition of "Repurchase Event" shall be amended by
deleting item (8) thereof in its entirety and replacing it with the
notation: "[Intentionally Deleted]" and by adding the following four
additional events, each of which shall individually constitute a
Repurchase Event:
(10) The Company fails to sign a binding definitive agreement
with Bausch & Lomb on or before January 31, 2001, providing for the Company's
receipt of $3,000,000 of cash proceeds from Bausch & Lomb on or before March 7,
2001;
(11) The Company fails to receive $3,000,000 of cash proceeds
from Bausch & Lomb on or before March 7, 2001;
(12) The average closing bid price of the Company's common
stock for the ten (10) trading days preceding January 31, 2001 does not
exceed $1.00 per share;
(13) The average closing bid price of the Company's common
stock for the ten (10) trading days preceding March 7, 2001 does not
exceed $1.00 per share;
(14) The Company's common stock ceases to be listed on either
the Nasdaq National Market or the Nasdaq SmallCap Market.
"Warrants" shall mean the Warrants substantially in the form of Exhibit
B to be issued to the Investors hereunder, as amended to reset the exercise
price to equal the lower of (a) $1.00 or (b) 110% of the closing bid price of
the Common Stock on the last trading date immediately preceding the 180th day
following the date hereof.
2. Repurchase Amount. Section 2.4 of the Purchase Agreement is hereby
amended to add the following sentence at the end of Section 2.4:
"The Repurchase Amount for any repurchase of shares effected
hereunder shall include the amount of any accrued but unpaid
dividends with respect to those shares."
3. Removal of Shareholder Approval Requirement. The provisions of
Section 6.13 of the Purchase Agreement are hereby deleted in their entirety and
replaced with the following notation: "[Intentionally Deleted]".
4. Warrant Repricing. The Company hereby agrees and acknowledges that
the exercise price of the Initial Warrants is hereby amended to equal the lower
of (a) $1.00 or (b) 110% of the closing bid price of the Common Stock on the
last trading date immediately preceding the 180th day following the date hereof.
The Company agrees that it will take such actions as may be reasonably requested
by the Investors to evidence or give effect to this repricing.
5. Termination of Repurchase Option. Effective immediately upon
execution of this Amendment, the Repurchase Option shall terminate.
6. Amendment to Series B Certificate of Designation. Simultaneous with
the execution of this Amendment, the Company shall execute and file with the
Delaware Department of State an Amended Series B Certificate of Designation in
substantially the form attached hereto as Exhibit A.
7. Amendment to the Registration Rights Agreement to Remove Certain
Penalties. Simultaneous with the execution of this Amendment, the parties shall
enter into an amendment to the Registration Rights Agreement in substantially
the form attached hereto as Exhibit B.
8. New Warrants. The Company agrees to issue to the Investors
effective on the date hereof additional warrants to purchase an aggregate of
20,000 shares of the Company's Common Stock at an exercise equal the lower of
(a) $1.00 or (b) 110% of the closing bid price of the Common Stock on the last
trading date immediately preceding the 180th day following the date hereof. The
shares issuable upon exercise of the new warrants shall have all of the rights
as set forth in the Registration Rights Agreement dated September 28, 2000
between the Company and the Investors, except for the mandatory registration
rights set forth in Section 2.a of that agreement.
9. Company Representations. The Company represents and warrants to the
Investors that it has all requisite corporate power and corporate authority to
enter into and perform its obligations under this Amendment and the transactions
contemplated hereby, including without limitation the repricing of the Warrants.
Subject to the continued accuracy of the Investors' representations in Article
III of the Purchase Agreement, the issuance and sale of the Warrants, as amended
hereby, will not require registration under the Securities Act and/or any
applicable state securities laws. When issued and paid for in accordance with
the Warrants, the Warrant Shares will be duly and validly issued, fully paid and
nonassessable.
Except as specifically amended or modified by this Amendment, the terms
and conditions of the Purchase Agreement shall remain in effect in every
particular as set forth in the Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to Convertible Preferred Stock and Warrants Purchase Agreement to be executed by
the undersigned, thereunto duly authorized, as of the date first set forth
above.
Atlantic Technology Ventures, Inc.
By: /s/ Frederic P. Zotos
-----------------------------
Name: Frederic P. Zotos
-----------------------------
Title: President
-----------------------------
Address: 175 Bloor Street East Investor: BH Capital Investments, L.P.
South Tower, 7th Floor By: HB and Co., Inc., its General
Toronto, Ontario, Canada M4W 3R8 Partner
Fax: 416-929-5314 By: /s/ Henry Brachfeld
-----------------------------
Name: Henry Brachfeld, President
Address: 33 Prince Arthur Avenue Investor: Excalibur Limited Partnership
Toronto, Ontario, Canada M5R I B2 By: Excalibur Capital Management, Inc.
Fax: 416-964-8868
By: /s/ William Hechter
-----------------------------
Name: William Hechter, President