SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 4, 2000
----------
ATLANTIC TECHNOLOGY VENTURES, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-27282 36-3898269
(State or other jurisdiction of (Commission file number) (I.R.S. employer
incorporation or organization) identification no.)
150 Broadway
Suite 1009 10038
New York, New York (Zip code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (212) 267-2503
Item 5. Other Events.
On December 4, 2000, Atlantic Technology Ventures, Inc. ("Atlantic")
and BH Capital Investments, L.P. and Excalibur Limited Partnership
(collectively, the "Investors") entered into a stock repurchase agreement (the
"Stock Repurchase Agreement"), a copy of which is attached as Exhibit 10.1 to
this Current Report on Form 8-K.
The Stock Repurchase Agreement provides for Atlantic's repurchase of
shares Atlantic sold to the Investors on September 28, 2000. On that date, the
Investors purchased from Atlantic, for a purchase price of $2 million, 689,656
shares of Atlantic's Series B convertible preferred stock and warrants to
purchase 134,000 shares of Atlantic's common stock. Half of the shares of Series
B preferred stock (344,828 shares) and warrants to purchase half of the shares
of common stock (67,000 shares) were held in escrow, along with half the
purchase price. (For a description of this transaction and a copy of the related
documents, see Atlantic's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 2000.)
In the Stock Repurchase Agreement, Atlantic and the Investors agreed to
the following:
o that Atlantic would repurchase from the Investors on the date of the
Stock Purchase Agreement, for a purchase price of $1,000,000, the
344,828 shares of Series B preferred stock that were being held in
escrow;
o that Atlantic would repurchase from the Investors on the date of the
Stock Purchase Agreement, for a purchase price of $500,000, 137,932
shares of Series B preferred stock held by the Investors;
o that Atlantic has an option to purchase any time during the period
ending January 2, 2001, for a purchase price of $750,000, the
remaining 206,896 shares of Series B preferred stock originally
purchased and now held by the Investors;
o that Atlantic was not repurchasing the warrants issued to the
Investors, and that the warrants held in escrow would be released to
the Investors; and
o that the deadline for Atlantic to hold a special meeting of
stockholders in connection with issuance of the Series B preferred
stock is extended to February 11, 2001, although Atlantic would not
be required to hold a special meeting of stockholders if it
exercises its option to purchase the remaining 206,896 shares of
Series B preferred stock held by the Investors.
Atlantic has made those repurchases it was required to make on the date
of the Stock Repurchase Agreement. The purchase price for the shares held in
escrow represents the purchase price paid by the Investors for those shares as
well as warrants to purchase 67,000 shares of Atlantic's common stock, while the
purchase price of $500,000 for the 137,932 shares of Series B preferred stock
held by the Investors represents 125%
-2-
of the purchase price paid by the Investors for those shares as well as warrants
to purchase 26,800 shares of Atlantic's common stock. The purchase price of
$750,000 for the 206,896 shares of Series B preferred stock held by the
Investors that Atlantic has an option to purchase represents 125% of the
purchase price paid by the Investors for those shares as well as warrants to
purchase 40,200 shares of Atlantic's common stock.
The primary reason for Atlantic's repurchasing the shares from the
Investors is that it has become apparent to Atlantic, based on discussions with
key stockholders and persons influential with stockholders, that the proposals
relating to the Series B transaction that were to have been voted on at a
special meeting of stockholders scheduled for December 18, 2000, stood little
chance of being approved. (For a description of these proposals, see the
preliminary proxy statement on Schedule 14A filed with the SEC on November 13,
2000. The meeting scheduled for December 18, 2000, will now not take place.)
Failure of stockholders to approve the resolutions related to the issuance of
the Series B shares would, among other things, have caused Atlantic to incur a
penalty of 2.5% per month of the $1,000,000 purchase price received by Atlantic
(amounting to $300,000 a year) and would have resulted in the removal of the
"Floor Price" for conversion of shares of Series B preferred stock.
Another reason why Atlantic decided to repurchase the shares from the
Investors is that on December 1, 2000, the Nasdaq Stock Market informally
indicated to Atlantic that it has significant concerns regarding the transaction
with the Investors, and that if these concerns are not addressed it would likely
commence delisting proceedings against Atlantic. Addressing these concerns would
require modifying the terms of the transaction, but the Investors have indicated
that they are unwilling to make all the modifications that would likely be
required. Nasdaq has, however, also informally indicated to Atlantic that
repurchase of the shares would resolve its concerns.
Based on these considerations, Atlantic determined that repurchasing
the shares of Series B preferred stock, even at a significant premium, was
preferable to the alternatives.
Atlantic intends to exercise its option to purchase the final 206,896
shares of Series B preferred stock held by the Investors. Currently, however, it
does not have sufficient funds to do so. It is attempting to raise those funds,
but it may not succeed.
Item 5. Other Events.
(c) Exhibits.
10.1 Stock Repurchase Agreement dated as of December 4, 2000, by and among
Atlantic Technology Ventures, Inc., BH Capital Investments, L.P. and
Excalibur Limited Partnership.
-3-
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
Atlantic Technology Ventures, Inc. has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
Date: December 11, 2000 ATLANTIC TECHNOLOGY VENTURES, INC
By: /s/ Frederic P. Zotos
------------------------------
Frederic P. Zotos
President
-4-
Exhibit 10.1
ATLANTIC TECHNOLOGY VENTURES, INC.
STOCK REPURCHASE AGREEMENT
This Stock Repurchase Agreement (the "Agreement") is made effective as
of the 4th day of December, 2000 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 (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"); and
WHEREAS, upon the terms and subject to the conditions contained herein,
the parties desire that (i) the Company repurchase an aggregate of 344,828
Shares from the Investors at an aggregate purchase price of $1,000,000 (such
Shares and purchase price currently being held pursuant to the Escrow Agreement
entered into in connection with the Purchase Agreement), (ii) the Warrants held
pursuant to the Escrow Agreement be released to the Investors, (iii) the Company
repurchase an aggregate of 137,930 Shares from the Investors for an aggregate
purchase price of $500,000, and (iv) the Company be granted an option to
purchase an aggregate of 206,898 Shares held by the Investors at an aggregate
purchase price of $750,000.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Initial Closing Date; Repurchase of Shares and Release of
Warrant.
(a) At the Initial Closing (as defined below), (i) the
Investors will sell to the Company, and the Company will repurchase
from the Investors, on a pro rata basis, all of the 344,828 Shares held
pursuant to the Escrow Agreement, at an aggregate purchase price of One
Million Dollars ($1,000,000), (ii) the Investors will sell to the
Company, and the Company will repurchase from the Investors, on a pro
rata basis, an aggregate of 137,930 Shares, at an aggregate purchase
price of Five Hundred Thousand Dollars ($500,000), and (iii) all
Warrants held pursuant to the Escrow Agreement shall be released to the
Investors.
(b) At the Initial Closing, (i) the Company and the Investors
shall 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 shall deliver to the Escrow
Agent stock certificates Nos. PB1 and PB2 representing an aggregate of
344,828 Shares for cancellation of the 137,930 Shares thereunder being
repurchased by
the Company, and (iii) the Company shall deliver to the Escrow Agent
Five Hundred Thousand Dollars ($500,000) by wire transfer of
immediately available funds in accordance with Section 1.2(b) of the
Escrow Agreement.
(d) 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.
(e) The closing of the transactions contemplated by this
Section 1 (the "Initial Closing") shall take place at 5:00 p.m.
(Eastern Time) on the date hereof at the offices of the Escrow Agent,
or at such other date, time or place as the Company and the Investors
may mutually agree (the "Initial Closing Date").
(f) 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. Option to Repurchase Shares.
(a) In connection with the repurchase of the Shares as set
forth in Section 1 above, the Investors hereby grant the Company an
option (the "Option") to repurchase the remaining 206,898 Shares (the
"Option Shares") at an aggregate exercise price of Seven Hundred Fifty
Thousand Dollars ($750,000).
(b) The Option may be exercised by the Company as to all of
the Option Shares, at any time, commencing on the Initial Closing and
ending on January 2, 2001 (the "Option Expiration Date"). If not
exercised on or prior to the Option Expiration Date, the Option shall
terminate.
(c) In the event the Company wishes to exercise the Option,
the Company shall send a written notice to the Investors of its
intention to exercise the Option (the "Notice"), specifying the time
and date of the closing of such purchase, as reasonably acceptable to
the Investors, which date shall not be more than three (3) business
days from the date on which such Notice is delivered (the "Option
Closing").
(d) At the Option Closing, (i) the Company shall deliver to
the Escrow Agent Seven Hundred Fifty Thousand Dollars ($750,000) by
wire transfer of immediately available funds in accordance with Section
1.2(b) of the Escrow Agreement, (ii) each Investor shall deliver to the
Escrow Agent a stock certificate representing the remaining
103,449 Shares held by the Investor, and (iii) the Company and the
Investors shall execute and deliver irrevocable instructions to the
Escrow Agent, in the form attached hereto as Exhibit B, to effect the
provisions of this Section 2.
(e) The Company and the Investors hereby acknowledge and agree
that delivery of the irrevocable instructions to the Escrow Agent as
provided in Section 2(d)(iii) 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.
(f) 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 2.
3. (a) Conditions to the Obligations of the Investors. The
Investors' obligations to consummate the transactions contemplated at
each of the Initial Closing and Option Closing, as applicable, are
subject to the satisfaction or written waiver of the following
conditions:
(i) The representations and warranties of the Company
contained in Article IV of the Purchase Agreement, to the
extent applicable, shall be true and correct as of the date
when made and as of each such closing as though made at that
time (except for representations and warranties that speak as
of a specific date, which shall have been true as of such
date), and the Company shall have performed, satisfied and
complied with the covenants, agreements and conditions
required hereunder and by the Transaction Documents to be
performed, satisfied or complied with by the Company at or
prior to such date. Each Investor shall have received a
certificate (along with an updated Disclosure Schedule, if
applicable), executed by the Company's President, dated as of
such closing date, to the foregoing effect and as to such
other matters as may be reasonably requested by such Investor.
(ii) The transactions on each such closing date shall
be legally permitted by all laws and regulations to which the
Company and the Investors are subject.
(iii) After giving effect to the transactions
contemplated by this Agreement and the Transaction Documents,
the Company shall be solvent, and the certificates delivered
by the Company's President at each Closing pursuant to Section
3(a)(i) above shall certify and confirm same.
(b) Conditions to the Obligations of the Company. The Company's
obligation to consummate the transactions contemplated at each of the Initial
Closing and Option Closing, as applicable, is subject to the satisfaction or
written waiver of the following conditions:
(i) The representations and warranties of the
Investors contained in Article III of the Purchase Agreement,
to the extent applicable, shall be true and correct as of the
date when made and as of each such closing as though made at
that time (except for representations and warranties that
speak as of a specific date, which shall have been true and
correct as of such date), and the Investors shall have
performed, satisfied and complied with the covenants,
agreements and conditions required herein and by the
Transaction Documents to be performed, satisfied or complied
with by them at or prior to such Closing Date.
(ii) The Shares to be purchased by the Company shall
be free and clear of any liens, encumbrances or interests of
any other party.
(iii) The transactions on each such closing date
shall be legally permitted by all laws and regulations to
which the Company and the Investors are subject.
4. Covenants of the Company. So long as any Investor holds any Shares,
Warrants or Common Stock issued or issuable upon conversion or exercise of such
Shares or Warrants, (a) the covenants of the Company contained in Article VI of
the Purchase Agreement, to the extent applicable, shall survive and continue in
full force and effect, and (b) the Company shall continue to maintain the
effectiveness of its Registration Statement on Form S-3 (Registration No.
333-49036) filed with the SEC on October 31, 2000; provided, however, that the
Stockholder Meeting Deadline as defined in Section 6.13 of the Purchase
Agreement shall be extended from ninety (90) days to one hundred thirty-five
(135) days from the Initial Closing Date (as defined therein).
5. Termination of Obligations to Complete the Second Closing under the
Purchase Agreement. The obligations of both parties to satisfy their obligations
under Section 2.1(a)(ii) of the Purchase Agreement with respect to the Second
Closing Date (as defined therein) shall terminate effective upon the execution
of this Agreement.
6. 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 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. The Company's obligations under this Section 6(e) shall arise
and remain in force whether or not any Closing occurs hereunder, unless
such failure to close is solely the result of default by the Investors.
(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) with the written consent of the Company and the Investors
or their transferees holding at least sixty percent (60%) of the
outstanding Shares; provided, however, that no such amendment or waiver
approved by fewer than all of the outstanding Shares shall reduce
the aforesaid percentage of shares required under this Section 6(g).
Any amendment or waiver effected in accordance with this Section 6(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, the annexes,
schedules or exhibits hereto or any instrument,
agreement or certificate entered into or delivered by
the Company pursuant to this Agreement; 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, the annexes, schedules or exhibits
hereto or any instrument, agreement or certificate
entered into or delivered by the Company pursuant to
this Agreement or the Purchase Agreement; 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, the annexes,
schedules or exhibits hereto or any instrument,
agreement or certificate entered into or delivered by
the Investor pursuant to this Agreement or the
Purchase Agreement; 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 or any instrument,
certificate or agreement entered into or delivered by
the Investor pursuant to this Agreement or the
Purchase Agreement.
(i) Definitions. Capitalized terms used herein and not
defined shall have the meaning ascribed to such terms in the Purchase
Agreement
(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) 715-9263
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
IN WITNESS WHEREOF, the parties hereto have caused this Stock
Repurchase 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 Partner
Toronto, Ontario, Canada M4W 3R8
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, dated as of December 4,
2000, by and among the Company and the Investors signatory thereto (the
"Repurchase Agreement"). Except as explicitly provided herein and in the
Repurchase Agreement, 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 Initial
Closing (as defined in the Repurchase Agreement), 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, (i) $500,000.00 of the Initial
Closing Escrow Holdback Amount, together with all interest accrued thereon, and
(ii) $250,000.00 of the $500,000.00 received via wire transfer from the Company
in accordance with Section 1 of the Repurchase Agreement, 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, (i) $500,000.00 of the Initial
Closing Escrow Holdback Amount, together with all interest accrued thereon, and
(ii) $250,000.00 of the $500,000.00 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 each of BH Capital Investments, L.P. and
Excalibur Limited Partnership (at the addresses listed on the signature page
hereto) all Warrants issued in the names of such entities that are being held in
accordance with the Escrow Agreement.
4. Release to the Company (at the address listed on the
signature page hereto) stock certificate PB 3 (issued to BH Capital Investments,
L.P. and representing 172,414 shares of the Company's Series B Preferred Stock)
and stock certificate PB 4 (issued to Excalibur Limited Partnership and
representing 172,414 shares of the Company's Series B Preferred Stock), each of
which are being held in accordance with the Escrow Agreement.
5. Release to the Company (at the address listed on the
signature page hereto) stock certificate PB 1 (issued to BH Capital Investments,
L.P. and representing 172,414 shares of the Company's Series B Preferred Stock)
and stock certificate PB 2 (issued to Excalibur Limited Partnership and
representing 172,414 shares of the Company's Series B Preferred Stock), each of
which have been received by you in accordance with Section 1 of the Repurchase
Agreement; provided, however, that such release shall not occur until you have
received from the Company (i) payment in full of all legal fees incurred by
Wyrick Robbins Yates & Ponton LLP (as provided for in Section 6(e) of the
Repurchase Agreement), (ii) payment in full of all amounts due to you as Escrow
Agent (pursuant to the terms of the Escrow Agreement), and (iii) stock
certificates representing 103,449 shares of the Company's Series B Preferred
Stock issued to each of BH Capital Investments, L.P. and Excalibur Limited
Partnership.
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 4th day of December 2000.
ATLANTIC TECHNOLOGY VENTURES, INC.
Address:150 Broadway, Suite 1009 By:
New York, New York 10038 -----------------------------------
Fax: 212-267-2159 Name:
------------------------------
Title:
-----------------------------
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: _________________________________
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: __________________________________
Name: William Hechter, President
Exhibit B
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, dated as of December 4,
2000, by and among the Company and the Investors signatory thereto (the
"Repurchase Agreement"). Except as explicitly provided herein and in the
Repurchase Agreement, 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 Option
Closing (as defined in the Repurchase Agreement), 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, $375,000.00 of the
$750,000.00 received via wire transfer from the Company in accordance with
Section 2 of the Repurchase Agreement, 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, $375,000.00 of the
$750,000.00 received via wire transfer from the Company in accordance with
Section 2 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 ___ (issued to BH Capital
Investments, L.P. and representing 103,449 shares of the Company's Series B
Preferred Stock) and stock certificate PB ___ (issued to Excalibur Limited
Partnership and representing 103,449 shares of the Company's Series B Preferred
Stock), each of which have been received by you in accordance with Section 2 of
the Repurchase Agreement; provided, however, that such release shall not occur
until you have received from the Company (i) payment in full of all unpaid legal
fees incurred by Wyrick Robbins Yates & Ponton LLP (as provided for in Section
6(e) of the Repurchase Agreement), and (ii) payment in full of all unpaid
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 ____ day of
___________________ 200__.
ATLANTIC TECHNOLOGY VENTURES, INC.
Address:150 Broadway, Suite 1009 By:
New York, New York 10038 -----------------------------------
Fax: 212-267-2159 Name:
------------------------------
Title:
------------------------------
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: _______________________________
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: _______________________________
Name: William Hechter, President