Exhibit 10.1
ATLANTIC TECHNOLOGY VENTURES, INC.
STOCK REPURCHASE AGREEMENT NO. 2
This Stock Repurchase Agreement No. 2 (the "Agreement") is made
effective as of the 9th day of March 2001 by and among Atlantic Technology
Ventures, Inc., a Delaware corporation (the "Company"), and BH Capital
Investments, L.P. and Excalibur Limited Partnership (each an "Investor" and,
collectively, the "Investors").
RECITALS
WHEREAS, pursuant to that certain Convertible Preferred Stock and
Warrants Purchase Agreement, dated as of September 28, 2000, by and among the
Company and the Investors (as amended, the "Purchase Agreement"), the Investors
purchased (i) an aggregate of 689,656 shares of the Company's Series B Preferred
Stock, par value $0.001 per share (the "Shares"), and (ii) warrants to purchase
an aggregate of 134,000 shares of the Company's Common Stock, par value $0.001
per share (the "Warrants");
WHEREAS, pursuant to that certain Stock Repurchase Agreement, dated
December 4, 2000, by and among the Company and the Investors (the "First
Repurchase Agreement"), the Company repurchased a total of 482,758 Shares for
total cash consideration of $1,500,000;
WHEREAS, of the remaining 206,898 Shares held by the Investors, the
Investors have converted 41,380 Shares into shares of the Company's common stock
(the "Conversion Shares"), which Conversion Shares are not being repurchased
hereunder;
WHEREAS, upon the terms and subject to the conditions contained herein,
the parties desire that the Company repurchase the remaining 165,518 Shares from
the Investors at an aggregate purchase price of $617,066.67 (the "Repurchase
Price") (such Shares currently being held pursuant to the Escrow Agreement
entered into in connection with the Purchase Agreement).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Repurchase of Shares.
(a) The Investors hereby sell to the Company, and the Company
hereby repurchases from the Investors, on a pro rata basis, all of the
remaining 165,518 Shares held by the Investors, at the Repurchase
Price.
(b) (i) The Company and the Investors hereby execute and
deliver irrevocable instructions to the Escrow Agent, in the form
attached hereto as Exhibit A, to effect the provisions of Section 1(a)
above, (ii) the Investors have delivered to the Escrow Agent stock
certificates Nos. PB5 and PB6 representing the 165,518 Shares being
repurchased by the Company, and (iii) the Company shall concurrently
with its signing of this
Agreement deliver to the Escrow Agent the entire Repurchase Price by
wire transfer of immediately available funds in accordance with Section
1.2(b) of the Escrow Agreement.
(c) The Company and the Investors hereby acknowledge and agree
that delivery of the irrevocable instructions to the Escrow Agent as
provided in Section 1(b)(i) above shall constitute an amendment of the
Escrow Agreement and the Escrow Agent's duties thereunder (in
accordance with the terms of the Escrow Agreement, including, without
limitation, those contained in Sections 2.4 and 2.7 of the Escrow
Agreement). Except as explicitly provided herein and in such
instructions, all other terms, conditions, obligations and other
provisions of the Escrow Agreement shall remain in full force and
effect.
(d) The Company and the Investors agree to execute and
deliver, and will cooperate in obtaining from all appropriate parties
(including, but not limited to, the Escrow Agent and the Company's
transfer agent), such further documents and instruments as may be
necessary or appropriate to consummate the transactions contemplated by
this Section 1.
2. Representations and Warranties of the Company. The Company
represents and Warrants to the Investors that:
(a) Organization of the Company. The Company is a corporation
duly incorporated and existing in good standing under the laws of the State of
Delaware and has all requisite corporate authority to own its properties and to
carry on its business as now being conducted.
(b) Authority. (i) The Company has the requisite corporate
power and corporate authority to enter into and perform its obligations under
this Agreement, (ii) the execution, issuance and delivery of this Agreement, and
the consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary corporate action and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required, and (iii) this Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws relating to, or affecting generally the enforcement of, creditors' rights
and remedies or by other equitable principles of general application.
(c) Common Stock. The Company has registered its Common Stock
pursuant to Section 12(b) or (g) of the Exchange Act and is in full compliance
with all reporting requirements of the Exchange Act, and the Company is in
compliance with all requirements for the continued listing or quotation of the
Common Stock, and the Common Stock is currently listed or quoted on, the
Principal Market. As of the date hereof, the Principal Market is the Nasdaq
SmallCap Market and the Company has not received any notice regarding the
termination or discontinuance of the eligibility of the Common Stock for such
listing.
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(d) SEC Documents. As of their respective dates, the SEC
Documents (a) complied in all material respects with the requirements of the
Exchange Act, and rules and regulations of the SEC promulgated thereunder, and
(b) did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the SEC
Documents complied in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto at the time of such
inclusion. Such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of operations
and cash flows for the periods then ended (subject, in the case of unaudited
interim statements, to normal year-end audit adjustments).
(e) No Conflicts. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not (i) result in a violation
of the Company's Certificate of Incorporation or Bylaws or (ii) result in a
violation of any federal, state or local law, rule, regulation, order, judgment
or decree (including federal and state securities laws and regulations)
applicable to the Company or by which any material property or asset of the
Company is bound or affected, nor is the Company otherwise in violation of,
conflict with or default under any of the foregoing (except in each case for
such conflicts, defaults, terminations, amendments, accelerations, cancellations
and violations as would not have, individually or in the aggregate, a Material
Adverse Effect). The Company is not required under any federal, state or local
law, rule or regulation to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency in order
for it to execute, deliver or perform any of its obligations under this
Agreement;
(f) No Undisclosed Events or Circumstances. Since the date of
the Company's most recent filing of Form 10-Q, no event or circumstance has
occurred or exists with respect to the Company or its businesses, properties,
prospects, operations or financial condition, that, under applicable law, rule
or regulation, requires public disclosure or announcement prior to the date
hereof by the Company but which has not been so publicly announced or disclosed
in the SEC Documents.
(g) No Misleading or Untrue Communication. Neither the Company
nor, to the knowledge of the Company, any person representing the Company, has
made to the Investors, at any time, any oral communication in connection with
the repurchase of the Shares, which together with the SEC Documents, taken as a
whole, contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
(h) No Misrepresentation. The representations and warranties
of the Company contained in this Agreement, or exhibit hereto, do not contain
any untrue statement of a
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material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(i) Solvency. After giving effect to the transactions
contemplated by this Agreement, the Company shall be solvent.
3. Representations and Warranties of the Investors. Each
Investor, severally and not jointly, represents and warrants to the Company
that:
(a) Authority. This Agreement and each exhibit hereto that is
required to be executed by Investor has been duly authorized and validly
executed and delivered by the Investor and is a valid and binding agreement of
the Investor enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies or by other
equitable principles of general application.
(b) No Conflicts. The execution, delivery and performance of
this Agreement by the Investor and the consummation by the Investor of the
transactions contemplated hereby do not and will not (i) result in a violation
of the Investor's organizational documents or any material agreement, contract
or other instrument to which the Investor is a party or (ii) result in a
violation of any federal, state or local law, rule, regulation, order, judgment
or decree (including federal and state securities laws and regulations)
applicable to the Investor or by which any material property or asset of the
Investor is bound or affected, nor is the Investor otherwise in violation of,
conflict with or default under any of the foregoing (except in each case for
such conflicts, defaults, terminations, amendments, accelerations, cancellations
and violations as would not have, individually or in the aggregate, a Material
Adverse Effect). The Investor is not required under any federal, state or local
law, rule or regulation to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency in order
for it to execute, deliver or perform any of its obligations under this
Agreement.
(c) No Encumbrances. The Shares to be purchased by the Company
are free and clear of any liens, encumbrances or interests of any other party.
4. Termination of Certain Rights and Obligations. The Company's
obligations and the Investors' rights under Sections 2.4, 6.1, 6.3, 6.8, 6.10,
6.11, 6.12, 6.14, 6.15, 6.16 and 6.17 of the Purchase Agreement shall terminate
effective immediately upon signing of this Agreement.
5. Miscellaneous.
(a) Counterparts; Facsimile; Amendments. This Agreement may be
executed in multiple counterparts, each of which may be executed by
less than all of the parties and shall be deemed to be an original
instrument which shall be enforceable against the parties actually
executing such counterparts and all of which together shall constitute
one
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and the same instrument. Except as otherwise stated herein, in lieu of
the original documents, a facsimile transmission or copy of the
original documents shall be as effective and enforceable as the
original. This Agreement may be amended only by a writing executed by
the Company and each of the Investors.
(b) Entire Agreement. This Agreement and the Purchase
Agreement (along with the other agreements and documents delivered
pursuant to this Agreement and the Purchase Agreement) set forth the
entire agreement and understanding of the parties relating to the
subject matter hereof and supersede all prior and contemporaneous
agreements, negotiations and understandings between the parties, both
oral and written relating to the subject matter hereof. Except as
specifically modified or amended hereunder or as rendered inapplicable
hereby, the terms, conditions and provisions of the Purchase Agreement
and the Transaction Documents shall continue in full force and effect.
(c) Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable or void, this Agreement shall continue in
full force and effect without said provision; provided that such
severability shall be ineffective if it materially changes the economic
benefit of this Agreement to any party.
(d) Headings. The headings used in this Agreement are used for
convenience only and are not to be considered in construing or
interpreting this Agreement.
(e) Fees and Expenses. Each of the Company and the Investors
agrees to pay its own expenses incident to the execution and delivery
of this Agreement and each agreement which is an exhibit hereto, except
that the Company shall pay the fees, expenses and disbursements of the
Escrow Agent and Wyrick Robbins Yates & Ponton LLP, counsel to the
Investors. The Company shall reimburse the Investors for their
reasonable expenses and legal fees incurred in enforcing this Agreement
or in any modifications or waivers with respect thereto. The Company
shall be responsible for all fees and expenses of any of its financial
advisors.
(f) Brokerage. Each of the parties hereto represents that it
has had no dealings in connection with the transactions contemplated
herein with any finder or broker who will demand payment of any fee or
commission from the other. The Company, on the one hand, and the
Investors, on the other hand, agree to indemnify the other against and
hold the other harmless from any and all liabilities to any person
claiming brokerage commissions or finder's fees on account of services
purported to have been rendered on behalf of the indemnifying party in
connection with this Agreement or the transactions contemplated hereby.
(g) Amendments and Waivers. Except as otherwise expressly
provided herein, 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, either retroactively or
prospectively and either for a specified period of time or
indefinitely)
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with the written consent of the Company and the Investors. Any
amendment or waiver effected in accordance with this Section 5(g) shall
be in writing and shall be binding upon the Investors and each
transferee of the securities issuable hereunder.
(h) Indemnification.
(A) The Company hereby agrees to indemnify and hold
harmless the Investors, their respective Affiliates (as
defined in SEC Rule 405) and their respective officers,
directors, partners and members (collectively, the "Investor
Indemnitees"), from and against any and all Damages, in each
case promptly as incurred by the Investor Indemnitees and to
the extent arising out of or in connection with:
(I) any misrepresentation by the Company or
breach of any of the Company's representations or
warranties contained in this Agreement or exhibits
hereto; or
(II) any failure by the Company to perform
in any material respect any of its covenants,
agreements, undertakings or obligations set forth in
this Agreement or any exhibits hereto; or
(III) any action instituted against the
Investors, or any of them, by any stockholder of the
Company who is not an Affiliate of an Investor, with
respect to any of the transactions contemplated by
this Agreement, other than actions arising out of
Investor gross negligence or willful misconduct.
(B) Each Investor, severally and not jointly, hereby
agrees to indemnify and hold harmless the Company, its
Affiliates and their respective officers, directors, partners
and members (collectively, the "Company Indemnitees"), from
and against any and all Damages, in each case promptly as
incurred by the Company Indemnitees and to the extent arising
out of or in connection with:
(I) any misrepresentation by the Investor or
breach of any of the Investor's representations or
warranties contained in this Agreement or exhibits
hereto; or
(II) any failure by the Investor to perform
in any material respect any of its covenants,
agreements, undertakings or obligations set forth in
this Agreement.
(i) Definitions. Capitalized terms used herein and not defined
shall have the meaning ascribed to such terms in the Purchase Agreement
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(j) Notices. All notices, demands, requests, consents,
approvals, and other communications required or permitted hereunder
shall be in writing and, unless otherwise specified herein, shall be
(i) hand delivered, (ii) deposited in the mail, registered or
certified, return receipt requested, postage prepaid, or (iii)
delivered by reputable air courier service with charges prepaid, or
(iv) transmitted by facsimile, addressed as set forth below or to such
other address as such party shall have specified most recently by
written notice. Any notice or other communication required or permitted
to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the
transmitting facsimile machine, at the address or number designated
below (if delivered on a business day during normal business hours
where such notice is to be received), or the first business day
following such delivery (if delivered other than on a business day
during normal business hours where such notice is to be received) or
(b) on the first business day following the date of sending by
reputable courier service, fully prepaid, addressed to such address, or
(c) upon actual receipt of such mailing, if mailed. The addresses for
such communications shall be:
If to the Company: Atlantic Technology Ventures, Inc.
150 Broadway, Suite 1009
New York, New York 10038
Attention: Frederic P. Zotos
Telephone: (212) 267-2503
Facsimile: (212) 267-2159
with a copy to (shall not constitute
notice):
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022-3052
Telephone: (212) 715-9100
Facsimile: (212) 715-8000
Attention: Ezra G. Levin, Esq.
if to the Investors: As set forth on the signature pages hereto
with a copy to: Kevin A. Prakke, Esq.
(shall not Wyrick Robbins Yates & Ponton LLP
constitute notice) 4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
Telephone: (919) 781-4000
Facsimile: (919) 781-4865
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IN WITNESS WHEREOF, the parties hereto have caused this Stock
Repurchase Agreement No. 2 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
Exhibit A
INSTRUCTIONS AND RELEASE NOTICE
The UNDERSIGNED, pursuant to the Escrow Agreement, dated as of
September 28, 2000 among Atlantic Technology Ventures, Inc. (the "Company"), the
Investors signatory thereto and Wyrick Robbins Yates & Ponton LLP, as Escrow
Agent (the "Escrow Agreement"; capitalized terms used herein and not defined
shall have the meaning ascribed to such terms in the Escrow Agreement), hereby
notify the Escrow Agent that certain terms of the Escrow Agreement and certain
duties of the Escrow Agent pursuant to such Escrow Agreement have been amended
as set forth in that certain Stock Repurchase Agreement No. 2, dated as of March
8, 2001, by and among the Company and the Investors signatory thereto (the
"Repurchase Agreement No. 2"). Except as explicitly provided herein and in the
Repurchase Agreement No. 2, all other terms, conditions, obligations and other
provisions of the Escrow Agreement shall remain in full force and effect.
This notice is being delivered in connection with the parties'
signing of Repurchase Agreement No. 2, which has taken place on the date hereof.
Accordingly, you are hereby irrevocably authorized and instructed to immediately
take the following actions:
1. Release, via wire transfer, one-half of the Repurchase
Price received via wire transfer from the Company in accordance with Section 1
of the Repurchase Agreement No. 2, to BH Capital Investments, L.P. as provided
below:
Canadian Imperial Bank of Commerce
Global Securities
Toronto, Ontario, Canada
Swift Code: CIBC CATT Transit #3202
For further credit to:
CIBC Wood Gundy - Account # 03 39113
For further credit to:
BH Capital Investments, L.P. - Account # 500 18444
2. Release, via wire transfer, one-half of the Repurchase
Price received via wire transfer from the Company in accordance with Section 1
of the Repurchase Agreement, to Excalibur Limited Partnership as provided below:
Beneficiary: Excalibur Limited Partnership
Branch 507
Account: 751282
Correspondent Bank: Citibank, N.A.
New York, New York
ABA Number: 021 000 089
SWIFT: CITIUS33
Beneficiary Bank: Canada Trust
Account Number: 36074896
(Canada's Trust Account with Citibank)
SWIFT: CATRCATTGBS
3. Release to the Company (at the address listed on the
signature page hereto) stock certificate PB 6 (issued to BH Capital Investments,
L.P. and representing the remaining 82,759 unconverted shares of the Company's
Series B Preferred Stock) and stock certificate PB 5 (issued to Excalibur
Limited Partnership and representing the remaining 82,759 unconverted shares of
the Company's Series B Preferred Stock); provided, however, that such release
shall not occur until you have received from the Company payment in full of all
legal fees incurred by Wyrick Robbins Yates & Ponton LLP (as provided for in
Section 4(e) of the Repurchase Agreement No. 2), (ii) payment in full of all
amounts due to you as Escrow Agent (pursuant to the terms of the Escrow
Agreement).
This Release Notice may be signed in one or more counterparts,
each of which shall be deemed an original.
IN WITNESS WHEREOF, the undersigned have caused this Release
Notice to be duly executed and delivered as of this 8th day of March 2001.
ATLANTIC TECHNOLOGY VENTURES, INC.
Address:150 Broadway, Suite 1009 By: /s/ Frederic P. Zotos
New York, New York 10038 -----------------------------
Fax: 212-267-2159 Name: Frederic P. Zotos
--------------------------
Title: President
--------------------------
Investors:
Address: 175 Bloor Street East 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 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