Exhibit 10.5
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made as of
September 28, 2000, by and among Atlantic Technology Ventures, Inc., a
corporation incorporated under the laws of the State of Delaware (the
"Company"), the investors signatory hereto (each an "Investor" and together the
"Investors"), and Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP, (the "Escrow Agent").
Capitalized terms used but not defined herein shall have the meanings set forth
in the Preferred Stock and Warrants Purchase Agreement referred to in the first
recital.
WITNESSETH:
WHEREAS, the Investors will be purchasing from the Company up
to $3,000,000 of Series B Preferred Stock of the Company (the "Purchased
Shares") and 201,000 Warrants to purchase shares of Common Stock, at the
purchase price set forth in the Preferred Stock and Warrants Purchase Agreement
(the "Purchase Agreement") dated the date hereof between the Investors and the
Company, which will be issued as per the terms contained herein and in the
Purchase Agreement; and
WHEREAS, it is intended that the purchase of the securities be
consummated in accordance with the requirements of Regulation S and/or the
requirements set forth by Sections 4(2) and/or 4(6) and/or Regulation D
promulgated under the Securities Act of 1933, as amended; and
WHEREAS, the Company and the Investors have requested that the
Escrow Agent hold the Purchase Price with respect to each Closing in escrow
until the Escrow Agent has received the certificates representing the Purchased
Shares, the Warrants and certain other closing documents specified herein and
the satisfaction and until the other conditions specified herein have been
satisfied;
NOW, THEREFORE, in consideration of the covenants and mutual
promises contained herein and other good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE 1
TERMS OF THE ESCROW
1.1. The parties hereby agree to establish an escrow account
with the Escrow Agent whereby the Escrow Agent shall hold the funds for the
purchase of the Purchased Shares and the Warrants at each Closing as
contemplated by the Purchase Agreement.
1.2. (a) At each Closing, upon Escrow Agent's receipt of the
Purchase Price for the Purchased Shares being purchased at that Closing into its
attorney trustee account
from the Investors, together with executed counterparts of this Agreement, the
Purchase Agreement and the Registration Rights Agreement, it shall
telephonically advise the Company, or the Company's designated attorney or
agent, of the amount of funds it has received into its account.
(b) Wire transfers to the Escrow Agent shall be made as follows:
Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP
Trust Account #1301101682
ABA Number: 0000-0000-0
Address: Branch Banking & Trust Company
Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx
Re: Xxxxxxxxx International (12529.004)
Attention: Xxx Xxxxx
Phone: (000) 000-0000
1.3. The Company, prior to or upon receipt of said notice,
shall deliver to the Escrow Agent the certificates representing the Purchased
Shares and the Warrants to be issued to each Investor at that Closing, in each
case registered in the name of each Investor in its pro rata share of such
Securities and duly executed on behalf of the Company, together with:
(a) the original executed Registration Rights Agreement
substantially in the form of Exhibit C to the Purchase
Agreement (for Initial Closing only);
(b) Instructions to the Transfer Agent substantially in the form
of Exhibit F to the Purchase Agreement, duly executed by the
parties thereto;
(c) the original executed opinion of Company's legal counsel
substantially in the form of Exhibit E to the Purchase
Agreement;
(d) an original counterpart of this Escrow Agreement (for Initial
Closing only); and
(e) Certification from the Delaware Secretary of State of the
filing of the Series B Certificate of Designations (for
Initial Closing only);
In the event that the foregoing items are not in the Escrow
Agent's possession within three (3) Trading Days of the Escrow Agent notifying
the Company that the Escrow Agent has custody of the Purchase Price, then each
Investor shall have the right to demand the return of said sum.
1.4. At each Closing, once the Escrow Agent confirms the
validity of the issuance of the Purchased Shares and the Warrants by means of
its receipt of a Release Notice in the form attached hereto as Exhibit X
executed by the Company and each Investor, it shall, as may be necessary, enter
the Exercise Price and Termination Date of each Warrant on the face of each
Warrant, insert the Closing Date on the certificates representing the Purchased
Shares, and then wire to the Company that amount of funds necessary to purchase
the Purchased Shares and the Warrants, less: (a) legal and escrow administrative
costs of the Escrow Agent, (b) with
respect to the Initial Closing, up to five thousand dollars ($5,000) as a due
diligence fee to BH Capital Investments. L.P., which the Company agrees may be
"net funded", and (c) with respect to the Initial Closing, $1,000,000 to be
retained in escrow by the Escrow Agent (the "Initial Closing Escrow Holdback
Amount") to be released as provided below.
(A) Once the net funds from the Initial Closing (as described
above) have been sent per the Company's instructions, the Escrow Agent shall
then promptly arrange to release and deliver to the Investors, pro rata
according to their investment amounts, certificates representing a total of
344,828 Purchased Shares (calculated as the $1,000,000 of funds released on the
Initial Closing Date divided by the Market Price on the Initial Closing Date of
$2.94) and Warrants for the purchase of a total of 67,000 shares of Common
Stock, together with the Registration Rights Agreement and the opinion of
counsel. The Escrow Agent shall retain the Initial Closing Escrow Holdback
Amount (equal to $1,000,000) and Warrants and certificates representing the
number of Purchased Shares purchased at the Initial Closing that are
attributable to the Initial Closing Escrow Holdback Amount (the "Escrow Holdback
Securities"), and shall release them only as follows:
(1) $800,000 of the Initial Closing Escrow Holdback
Amount shall be released to the Company within two (2) business days of
the Company's delivery to the Escrow Agent of written confirmation of
stockholder approval of the proposals contemplated by Section 6.13 of
the Purchase Agreement (the "Stockholder Approval Confirmation") and
that the Company has not received a delisting notice nor has their
occurred a trading suspension, both as described in Section 1.4(c)
below; provided, however, that if such approval is not obtained on or
prior to the Stockholder Meeting Deadline (as defined in the Purchase
Agreement), the Investors shall be entitled, upon written notice to the
Escrow Agent, to receive, and the Escrow Agent shall be authorized to
release to the Investors, this $800,000, together with interest accrued
thereon, and the Company shall likewise be entitled to a return of the
Escrow Holdback Securities attributable to this amount for
cancellation;
(2) the remaining $200,000 of the Initial Closing
Escrow Holdback Amount shall be released to the Company within (2)
business days of the Company's delivery to the Escrow Agent of the
Stockholder Approval Confirmation and written confirmation that the
Company has not received a delisting notice nor has their occurred a
trading suspension, both as described in Section 1.4(c) below, but only
if the Market Price on the date of stockholder approval is $3.00 or
more; provided, however, that if such approval is not obtained on or
prior to the Stockholder Meeting Deadline, the Investors shall be
entitled, upon written notice to the Escrow Agent, to receive, and the
Escrow Agent shall be authorized to release to the Investors, this
$200,000, together with interest accrued thereon, and the Company shall
likewise be entitled to a return of the Escrow Holdback Securities
attributable to this amount for cancellation;
(3) Notwithstanding the foregoing, if prior to
release of the Initial Closing Escrow Holdback Amount to the Company as
provided above, (a) the Company has been notified of any pending or
threatened proceeding or other action to delist or
suspend the Common Stock from trading on the Nasdaq SmallCap Market, or
(b) for any period of five consecutive trading days after the date
hereof there is no closing bid price of the Common Stock on the Nasdaq
SmallCap Market, then the Escrow Agent shall not release any such funds
to the Company and shall promptly following written notice from the
Investors, return such funds, together with accrued interest, to the
Investors, and the Company shall likewise be entitled to a return of
the Escrow Holdback Securities for cancellation.
(B) Once the net funds from the Second Closing have been sent
per the Company's instructions, the Escrow Agent shall then promptly arrange to
release and deliver to the Investors, pro rata according to their investment
amounts, certificates representing number of Purchased Shares (calculated as the
$1,000,000 of funds released on the Second Closing Date divided by the Market
Price on the Second Closing Date) and Warrants for the purchase of a total of
67,000 shares of Common Stock, together with the opinion of counsel.
ARTICLE 2
MISCELLANEOUS
2.1. No waiver or any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed any extension of
the time for performance of any other obligation or act.
2.2. All notices or other communications required or permitted
hereunder shall be in writing, and shall be sent as set forth in the Purchase
Agreement.
2.3. This Escrow Agreement shall be binding upon and shall
inure to the benefit of the permitted successors and permitted assigns of the
parties hereto.
2.4. This Escrow Agreement is the final expression of, and
contains the entire agreement between, the parties with respect to the subject
matter hereof and supersedes all prior understandings with respect thereto. This
Escrow Agreement may not be modified, changed, supplemented or terminated, nor
may any obligations hereunder be waived, except by written instrument signed by
the parties to be charged or by its agent duly authorized in writing or as
otherwise expressly permitted herein.
2.5. Whenever required by the context of this Escrow
Agreement, the singular shall include the plural and masculine shall include the
feminine. This Escrow Agreement shall not be construed as if it had been
prepared by one of the parties, but rather as if both parties had prepared the
same. Unless otherwise indicated, all references to Articles are to this Escrow
Agreement.
2.6. The parties hereto expressly agree that this Escrow
Agreement shall be governed by, interpreted under and construed and enforced in
accordance with the laws of the State of North Carolina. Any action to enforce,
arising out of, or relating in any way to, any provisions of this Escrow
Agreement shall only be brought in a state or Federal court sitting in Raleigh,
North Carolina.
2.7. The Escrow Agent's duties hereunder may be altered,
amended, modified or revoked only by a writing signed by the Company, each
Investor and the Escrow Agent.
2.8. The Escrow Agent shall be obligated only for the
performance of such duties as are specifically set forth herein and may rely and
shall be protected in relying or refraining from acting on any instrument
reasonably believed by the Escrow Agent to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent shall not be
personally liable for any act the Escrow Agent may do or omit to do hereunder as
the Escrow Agent while acting in good faith, and any act done or omitted by the
Escrow Agent pursuant to the advice of the Escrow Agent's attorneys-at-law shall
be conclusive evidence of such good faith.
2.9. The Escrow Agent is hereby expressly authorized to
disregard any and all warnings given by any of the parties hereto or by any
other person or corporation, excepting only orders or process of courts of law
and is hereby expressly authorized to comply with and obey orders, judgments or
decrees of any court. In case the Escrow Agent obeys or complies with any such
order, judgment or decree, the Escrow Agent shall not be liable to any of the
parties hereto or to any other person, firm or corporation by reason of such
decree being subsequently reversed, modified, annulled, set aside, vacated or
found to have been entered without jurisdiction.
2.10. The Escrow Agent shall not be liable in any respect on
account of the identity, authorization or rights of the parties executing or
delivering or purporting to execute or deliver the Purchase Agreement or any
documents or papers deposited or called for thereunder.
2.11. The Escrow Agent shall be entitled to employ such legal
counsel and other experts as the Escrow Agent may deem necessary properly to
advise the Escrow Agent in connection with the Escrow Agent's duties hereunder,
may rely upon the advice of such counsel, and may pay such counsel reasonable
compensation therefor. The Escrow Agent has acted as legal counsel for the
Investors, and may continue to act as legal counsel for the Investors, from time
to time, notwithstanding its duties as the Escrow Agent hereunder. The Company
consents to the Escrow Agent in such capacity as legal counsel for the Investors
and waives any claim that such representation represents a conflict of interest
on the part of the Escrow Agent. The Company understands that the Investors and
the Escrow Agent are relying explicitly on the foregoing provision in entering
into this Escrow Agreement.
2.12. The Escrow Agent's responsibilities as escrow agent
hereunder shall terminate if the Escrow Agent shall resign by written notice to
the Company and the Investors. In the event of any such resignation, the
Investors and the Company shall appoint a successor Escrow Agent.
2.13. If the Escrow Agent reasonably requires other or further
instruments in connection with this Escrow Agreement or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
2.14. It is understood and agreed that should any dispute
arise with respect to the delivery and/or ownership or right of possession of
the documents or the escrow funds held by the Escrow Agent hereunder, the Escrow
Agent is authorized and directed in the Escrow Agent's sole discretion (1) to
retain in the Escrow Agent's possession without liability to anyone all or any
part of said documents or the escrow funds until such disputes shall have been
settled either by mutual written agreement of the parties concerned or by a
final order, decree or judgment or a court of competent jurisdiction after the
time for appeal has expired and no appeal has been perfected, but the Escrow
Agent shall be under no duty whatsoever to institute or defend any such
proceedings or (2) to deliver the escrow funds and any other property and
documents held by the Escrow Agent hereunder to a state or Federal court having
competent subject matter jurisdiction and located in the City of Raleigh, North
Carolina in accordance with the applicable procedure therefor.
2.15. The Company and each Investor agree jointly and
severally to indemnify and hold harmless the Escrow Agent and its partners,
employees, agents and representatives from any and all claims, liabilities,
costs or expenses in any way arising from or relating to the duties or
performance of the Escrow Agent hereunder or the transactions contemplated
hereby or by the Purchase Agreement other than any such claim, liability, cost
or expense to the extent the same shall have been determined by final,
unappealable judgment of a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of the Escrow Agent.
IN WITNESS WHEREOF, the parties hereto have executed this
Escrow Agreement as of the date set forth above.
ATLANTIC TECHNOLOGY VENTURES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
BH Capital Investments, L.P.
By: HB and Co., Inc., its General Partner
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxxx, President
Excalibur Limited Partnership
By: Excalibur Capital Management, Inc.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx, President
ESCROW AGENT:
XXXXXX XXXXXXX XXXXX & XXXXXX LLP
By: /s/ Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP
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Exhibit X to
Escrow Agreement
RELEASE NOTICE
The UNDERSIGNED, pursuant to the Escrow Agreement, dated as of
September 28, 2000 among Atlantic Technology Ventures, Inc., the Investors
signatory thereto and Xxxxxx Xxxxxxx Xxxxx & Xxxxxx 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 each of the conditions precedent to the purchase and sale of
the Purchased Shares and Warrants set forth in the Purchase Agreement have been
satisfied. The Company and the undersigned Investor hereby confirm that all of
their respective representations and warranties contained in the Purchase
Agreement remain true and correct and authorize the release by the Escrow Agent
of the funds and documents to be released at the Closing as described in the
Escrow Agreement. This Release Notice shall not be effective until executed by
the Company and the Investor.
The number of Warrants to be issued to all Investors in the
aggregate is ______ and the exercise price per share is $______.
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 28th day of September, 2000.
ATLANTIC TECHNOLOGY VENTURES, INC.
By:
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President
BH Capital Investments, L.P.
By: HB and Co., Inc., its General Partner
By:
------------------------------------
Xxxxx Xxxxxxxxx, President
Excalibur Limited Partnership
By: Excalibur Capital Management, Inc.
By:
------------------------------------
Xxxxxxx Xxxxxxx, President
