UNITED
STATES
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): July
21, 2014
Aetrium
Incorporated
(Exact
Name of Registrant as Specified in Its Charter)
Minnesota |
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0-22166 |
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41-1439182 |
(State or other Jurisdiction |
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(Commission |
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(IRS Employer |
of Incorporation) |
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File Number) |
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Identification No.) |
2350 Helen Street, North
St. Paul, Minnesota |
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55109 |
(Address of Principal Executive Offices) |
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(Zip Code) |
Registrant’s
telephone number, including area code: (651) 770-2000
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N/A |
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(Former name or former address if changed since last report) |
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Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the follow provisions:
[ ] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. |
Entry into a Material Definitive Agreement. |
On
July 21, 2014, Aetrium Incorporated (the “Company”) entered into a Securities Purchase Agreement (the “Agreement”)
with Lone Star Value Co-Invest I, LP (“LSV Co-Invest”) pursuant to which LSV Co-Invest purchased, for $2.5 million
in cash, an unsecured promissory note made by the Company in the principal amount of $2.5 million (the “Note”), bearing
interest at 10.0% per annum, with interest payable semiannually and any unpaid principal and interest due on April 1, 2019. The
Company may prepay the Note at any time after a specified amount of advance notice to LSV Co-Invest.
The
Note provides for customary events of default, the occurrence of any of which may result in the principal and unpaid interest
then outstanding becoming immediately due and payable.
The
foregoing descriptions of the Agreement and the Note are not complete and are qualified in their entirety by reference to the
full text of such documents, which are filed herewith as Exhibit 10.1 and Exhibit 4.1, respectively, and are incorporated
herein by reference.
Lone
Star Value Investors, LP (“LSVI”), an affiliate of LSV Co-Invest, owns 60,588 shares of the Company’s common
stock, or approximately 5.6% of the shares outstanding, and holds a promissory note of the Company, dated April 1, 2014, in the
original principal amount of $6,000,000, and a convertible promissory note of the Company, dated April 1, 2014, in the original
principal amount of $500,000, convertible into shares of the Company’s common stock. Jeffrey E. Eberwein, the Company’s
Chairman of the Board, is the founder and Chief Executive Officer of Lone Star Value Management, LLC, the investment manager of
LSVI, and is the manager of Lone Star Value Investors GP, LLC, the general partner of LSVI and LSV Co-Invest.
The
Company’s entry into the Agreement was approved by a Special Committee of the Company’s Board of Directors consisting
solely of independent directors.
Item 2.03. |
Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The
information set forth in Item 1.01 regarding the Note is incorporated into this Item 2.03 by reference.
Item 9.01. |
Financial
Statements and Exhibits. |
(d) Exhibits.
Exhibit
No. |
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Description |
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4.1 |
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Promissory Note,
dated July 21, 2014. |
10.1 |
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Securities Purchase
Agreement, dated July 21, 2014, by and between Aetrium Incorporated and Lone Star Value Co-Invest I, LP. |
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
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AETRIUM INCORPORATED |
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Dated: July 25, 2014 |
By: |
/s/ Paul H. Askegaard |
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Name: |
Paul H. Askegaard |
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Title: |
Chief Financial Officer |
Exhibit
Index
Exhibit
No. |
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Description |
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4.1 |
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Promissory Note,
dated July 21, 2014. |
10.1 |
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Securities Purchase
Agreement, dated July 21, 2014, by and between Aetrium Incorporated and Lone Star Value Co-Invest I, LP. |
Exhibit
4.1
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“ACT”), OR UNDER ANY STATE SECURITIES LAW
AND THIS NOTE MAY NOT BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECT
THERETO UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR UNLESS THE DEBTOR RECEIVES AN OPINION OF COUNSEL, SATISFACTORY
TO THE DEBTOR, THAT SUCH REGISTRATION IS NOT REQUIRED.
Aetrium
Incorporated
PROMISSORY
NOTE
$2,500,000.00 |
July
21, 2014 |
FOR
VALUE RECEIVED, Aetrium Incorporated, a Minnesota corporation (the “Debtor”),
promises to pay to the order of Lone Star Value Co-Invest I, LP (the “Holder”),
or its registered assigns, the principal amount of TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00), in such coin or
currency of the United States of America as at the time of payment shall be legal tender for the payment of public or private
debts, together with interest as set forth herein.
1.
Payment of Interest and Principal. All unpaid principal, together with any then accrued and unpaid interest and any other
amounts payable hereunder, shall be due and payable on April 1, 2019 (the “Maturity Date”). If any payment
hereunder becomes due and payable on a Saturday, Sunday or legal holiday under the laws of the United States of America or the
State of Minnesota, or both, the due date thereof shall be extended to the next business day and interest shall be payable for
any principal so extended for the period of such extension. Payments of principal and interest are to be made at the address provided
herein for the Holder (or at such other place as the Holder shall have notified the Debtor in writing at least five (5) days before
such payment is due) or by wire transfer pursuant to the Holder’s written instructions.
2.
Interest. (a) Interest shall accrue on the unpaid principal balance of this Note at the rate of ten percent (10.0%) per
annum, and shall be payable semiannually in cash on the third business day of each January and July in respect of the immediately
preceding semi-annual period. Interest shall be calculated from and include the date hereof and shall be calculated on an actual/360-day
basis.
(b)
Notwithstanding anything to the contrary contained herein, in no event shall this or any other provision herein permit the collection
of any interest which would be usurious under applicable law. If under any circumstances, whether by reason of advancement or
acceleration of the maturity of the unpaid principal balance hereof or otherwise, the aggregate amounts paid under this Note shall
include amounts which by law are deemed interest and which would exceed the maximum rate permitted by law, the Debtor stipulates
that payment and collection of such excess amounts shall have been and will be deemed to have been the result of a mistake on
the part of both the Holder and the Debtor, and the Holder shall promptly credit such excess (only to the extent such payments
are in excess of the maximum rate) against the unpaid principal balance hereof and any portion of such excess payments not capable
of being so credited shall be refunded to the Debtor.
3.
Prepayment. The Debtor shall be entitled to prepay the principal amount of this Note (in whole or in part) together with
all interest under this Note accrued and unpaid at the date of prepayment at any time without penalty or premium upon five (5)
days prior written notice to the Holder. The Debtor shall be obligated to effect such prepayment within three (3) days after the
end of such notice period.
4.
Events of Default. (a) Acceleration. Upon the occurrence of any of the following events (herein called “Events
of Default”):
(i)
The Debtor shall fail to make full and timely payment of principal of or interest on this Note when due and such failure continues
for a period of five (5) consecutive days;
(ii)
(A) The Debtor or any of its material subsidiaries shall commence any proceeding or other action relating to it in bankruptcy
or seek reorganization, arrangement, readjustment of its debts, receivership, dissolution, liquidation, winding-up, composition
or any other relief under any bankruptcy law, or under any other insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or any other similar act or law, of any jurisdiction, domestic or foreign, now or hereafter
existing; (B) the Debtor or any of its material subsidiaries shall admit the material allegations of any petition or pleading
in connection with any such proceeding; (C) the Debtor or any of its material subsidiaries shall apply for, or consent or acquiesce
to, the appointment of a receiver, conservator, trustee or similar officer for it or for all or a substantial part of its property;
or (D) the Debtor or any of its material subsidiaries shall make a general assignment for the benefit of creditors;
(iii)
(A) The commencement of any proceedings or the taking of any other action against the Debtor or any of its material subsidiaries
in bankruptcy or seeking reorganization, arrangement, readjustment of its debts, liquidation, dissolution, arrangement, composition,
or any other relief under any bankruptcy law or any other similar act or law of any jurisdiction, domestic or foreign, now or
hereafter existing; (B) the appointment of a receiver, conservator, trustee or similar officer for the Debtor or any of its material
subsidiaries for any of its property; or (C) the issuance of a warrant of attachment, execution or similar process against any
of the property of the Debtor or any of its material subsidiaries, and the continuance of any such events for sixty (60) days
undismissed, unbonded or undischarged;
(iv)
The Debtor breaches any of its representations and warranties made under that certain Securities Purchase Agreement, dated as
of the date hereof (the “Purchase Agreement”), by and between the Debtor and the Holder;
(v)
The Debtor shall fail to comply with any of its covenants or obligations under this Note (other than such failure described subsection
(i) above) or the Purchase Agreement, which failure shall continue uncured for thirty (30) calendar days after notice thereof
to the Debtor; or
(vi)
The Debtor shall, directly or indirectly, in one or more related transactions, (A) consolidate or merge with or into (whether
or not Debtor is the surviving corporation) another person, (B) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of the properties or assets of Debtor to another person, (C) allow another person to make a purchase, tender
or exchange offer that is accepted by the holders of more than 50% of the outstanding shares of the Debtor’s common stock,
par value $0.001 per share (the “Common Stock”) (not including any shares of Common Stock held by the person
or persons making or party to, or associated or affiliated with the persons making or party to, such purchase, tender or exchange
offer), or (D) consummate a stock purchase agreement or other business combination (including, without limitation, a reorganization,
recapitalization or spin-off) with another person whereby such other person acquires more than 50% of the outstanding shares of
Common Stock (not including any shares of Common Stock held by the other person or other persons making or party to, or associated
or affiliated with the other persons making or party to, such stock purchase agreement or other business combination);
then,
and in any such event, the Holder, at the Holder’s option and without written notice to the Debtor, may declare the entire
principal amount of this Note then outstanding together with accrued unpaid interest thereon immediately due and payable, and
the same shall forthwith become immediately due and payable without presentment, demand, protest, or other notice of any kind,
all of which are expressly waived. The Events of Default listed herein are solely for the purpose of protecting the interests
of the Holder of this Note. If this Note is not paid in full upon acceleration, as required above, interest shall accrue on the
outstanding principal of and interest on this Note from the date of the Event of Default up to and including the date of payment
at a rate equal to the lesser of twelve percent (12.0%) per annum compounded on the third Business Day of each January and July
or the maximum interest rate permitted by applicable law.
(b)
Non-Waiver and Other Remedies. No course of dealing or delay on the part of the Holder of this Note in exercising any right
hereunder shall operate as a waiver or otherwise prejudice the right of the Holder of this Note. No remedy conferred in this Note
or the Purchase Agreement is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative
and shall be in addition to every other remedy conferred herein or now or hereafter existing at law or equity or by statute or
otherwise.
(c)
Collection Costs; Attorney’s Fees. In the case of an Event of Default, if this Note is turned over to an attorney
for collection, the Debtor agrees to pay all reasonable costs of collection, including reasonable attorney’s fees and expenses
and all out-of-pocket expenses incurred by the Holder in connection with such collection efforts.
5.
Cancellation. Upon full satisfaction of the Debtor’s obligations hereunder, the Holder shall promptly deliver or
cause to be delivered to the Debtor this Note for cancellation.
6.
Amendment; Waiver. This Note may not be amended or modified or the provisions hereof waived (either generally or in a particular
instance and either retroactively or prospectively) without the prior written consent of the party against whom such amendment,
modification, or waiver is sought to be enforced. All of the terms and provisions of this Note shall be applicable to and binding
upon each and every maker, Holder, endorser, surety, guarantor and all other persons who are or may become liable for the payment
hereof and their respective successors and assigns.
7.
Lost Documents. Upon receipt by the Debtor of evidence satisfactory to it of the loss, theft, destruction or mutilation
of this Note or any note exchanged for it, and (in the case of loss, theft or destruction) of indemnity reasonably satisfactory
to it, and upon surrender and cancellation of such note, if mutilated, the Debtor will make and deliver in lieu of such note a
new note of like tenor and unpaid principal amount and dated as of the original date of the original note.
8.
Miscellaneous.
(a)
Severability. In case any one or more of the provisions contained in this Note should be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be
affected or impaired thereby.
(b)
Notices and Addresses. All notices, offers, acceptances and any other acts under this Note (except payment) shall be in
writing, and shall be sufficiently given if delivered to the addressee in person, by FedEx or similar receipted delivery, by facsimile
delivery or, if mailed, postage prepaid, by certified mail, return receipt requested, as follows:
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To Holder: |
Lone Star Value Co-Invest
I, LP |
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53 Forest Avenue, 1st Floor |
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Old Greenwich, Connecticut 06870 |
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Fax: (203) 990-0727 |
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To the Debtor: |
Aetrium Incorporated |
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2350 Helen Street |
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North St. Paul, Minnesota 55109 |
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Fax: (651) 770-7975 |
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With a copy to (which
shall not constitute notice): |
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Olshan Frome Wolosky LLP |
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Park Avenue Tower |
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65 East 55th Street |
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New York, New York 10022 |
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Attn: Adam Finerman, Esq. |
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Fax: (212) 451-2222 |
or
to such other address as any of them, by notice to the others may designate from time to time.
(c)
Governing Law. This Note and any dispute, disagreement, or issue of construction or interpretation arising hereunder, whether
relating to its execution, its validity, the obligations provided therein or performance, shall be governed and interpreted according
to the law of the State of Minnesota, without regard to principals of conflicts of law.
(d)
Binding Effect; Assignment. This Note and the various rights and obligations arising hereunder shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and permitted assigns. The Debtor may not delegate,
transfer or assign any rights or obligations hereunder without the Holder’s prior written consent. The Holder may not assign
or delegate all or any portion of the rights of the Holder hereunder without the consent of the Debtor (such consent not to be
unreasonably withheld, conditioned or delayed), except that no such consent shall be required for an assignment or delegation
to an affiliate of the Holder or while an Event of Default has occurred and is continuing. Any transfer or assignment of any of
the rights, interests or obligations hereunder in violation of the terms hereof shall be void and of no force or effect.
(e)
Jurisdiction and Venue. Each of the Holder and the Debtor (i) agree that any legal suit, action or proceeding arising out
of or relating to this Note shall be instituted exclusively in the courts of Ramsey County in the State of Minnesota, (ii) waive
any objection to the venue of any such suit, action or proceeding and the right to assert that such forum is not a convenient
forum, and (iii) irrevocably consent to the jurisdiction of the courts of Ramsey County in the State of Minnesota in any such
suit, action or proceeding, and further agree to accept and acknowledge service of any and all process which may be served in
any such suit, action or proceeding and agree that service of process upon them mailed by certified mail to their respective addresses
shall be deemed in every respect effective service of process upon them in any such suit, action or proceeding.
(f)
Section Headings. Section headings herein have been inserted for reference only and shall not be deemed to limit or otherwise
affect, in any manner, or be deemed to interpret in whole or in part any of the terms or provisions of this Note.
(g)
Waiver of Presentment. Debtor and each surety, endorser and guarantor hereof hereby waive all demands for payment, presentations
for payment, notices of intention to accelerate maturity, notices of acceleration of maturity, demand for payment, protest, notice
of protest and notice of dishonor, to the extent permitted by law, except for those notices expressly provided for herein. No
extension of time for payment of this Note or any installment hereof, no alteration, amendment or waiver of any provision of this
Note shall release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Debtor under this Note.
(h)
Forbearance. Any forbearance by the holder of this Note in exercising any right or remedy hereunder or under any other
agreement or instrument in connection with this Note or otherwise afforded by applicable law shall not be a waiver or preclude
the exercise of any right or remedy by the holder of this Note. The acceptance by the holder of this Note of payment of any sum
payable hereunder after the due date of such payment shall not be a waiver of the right of the holder of this Note to require
prompt payment when due of all other sums payable hereunder or to declare a default for failure to make prompt payment.
(i)
Acceleration. At the election of the holder of this Note, all payments due hereunder may be accelerated, and this Note
shall become immediately due and payable without notice or demand, upon the occurrence of an Event of Default under this Note,
which default is not cured within any grace period expressly provided therefor. In addition to the rights and remedies provided
herein, the holder of this Note may exercise any other right or remedy in any other document, instrument or agreement evidencing
or otherwise relating to the indebtedness evidenced hereby in accordance with the terms thereof, or under applicable law, all
of which rights and remedies shall be cumulative.
(j)
Construction. This Note shall be construed without any regard to any presumption or rule requiring construction against
the party causing such instrument or any portion thereof to be drafted.
[SIGNATURE
PAGE OF Aetrium Incorporated PROMISSORY NOTE]
IN
WITNESS WHEREOF, the Debtor has caused this Note to be made and issued in its name on the date specified above.
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Aetrium
Incorporated |
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By: |
/s/ Paul Askegaard |
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Name: |
Paul Askegaard |
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Title: |
Chief Financial
Officer |
Exhibit
10.1
Securities
PURCHASE AGREEMENT
SECURITIES
PURCHASE AGREEMENT (this “Agreement”), dated as of July 21, 2014, by and between Aetrium Incorporated, a Minnesota
corporation (the “Company”), and Lone Star Value Co-Invest I, LP (“Purchaser”).
WITNESSETH:
WHEREAS,
Lone Star Value Investors, LP (“Lone Star”), an affiliate of Purchaser, owns 60,588 shares of the Company’s
common stock, par value $0.001 per share (“Common Stock”), and holds a promissory note of the Company, dated
April 1, 2014, in the original principal amount of $6,000,000, and a convertible promissory note of the Company, dated April 1,
2014, in the original principal amount of $500,000, convertible into shares of Common Stock;
WHEREAS,
Jeffrey E. Eberwein, the Chairman of the Company’s Board of Directors, serves as the manager of Lone Star Value Investors
GP, LLC, the general partner of Lone Star and Purchaser, and as the sole member of Lone Star Value Management, LLC, which serves
as the investment manager of Lone Star, and therefore may be deemed to beneficially own the securities held by Lone Star and Purchaser;
and
WHEREAS,
subject to the terms and conditions of this Agreement and pursuant to Section 4(2) of the Securities Act of 1933, as amended (the
“Securities Act”), the Company desires to issue and sell to Purchaser, and Purchaser desires to purchase from
the Company, a Promissory Note in the original principal amount of $2,500,000 (the “Note”).
NOW
THEREFORE, in consideration of the mutual promises and representations, warranties, covenants and agreements set forth herein,
the parties hereto, intending to be legally bound, hereby agree as follows:
1.
Purchase and Sale of Securities.
1.1
Purchase and Sale. On the terms and subject to the conditions set forth in this Agreement, at the Closing (as defined below),
the Company will sell and Purchaser will purchase the Note. The terms and provisions of the Note are more fully set forth in the
form of Promissory Note attached hereto as Exhibit A. The purchase price to be paid by Purchaser to the Company to acquire
the Note shall be $2,500,000 (the “Purchase Price”). At the Closing, Purchaser shall pay the Purchase Price
to the Company by wire transfer of immediately available funds to an account designated by the Company and the Company shall deliver
to Purchaser an executed Promissory Note.
1.2
Closing. On the terms and subject to the conditions set forth in this Agreement, the closing of the transactions contemplated
by this Agreement (the “Closing”) shall take place remotely via the exchange of electronic copies of documents,
and shall be deemed to have taken place simultaneously with the execution and delivery of this Agreement and the satisfaction
of the obligations of the parties under Section 1.1.
2.
Representations and Warranties of the Company. The Company represents and warrants to Purchaser as follows:
2.1
Corporate Organization. The Company is a corporation duly organized, validly existing and in good standing under the laws
of the State of Minnesota, and has all requisite corporate power and authority to own, operate and lease its properties and to
carry on its business as and in the places where such properties are now owned, operated and leased or such business is now being
conducted.
2.2
Authorization. The Company has the requisite power and authority to enter into and perform this Agreement and any other
agreements, documents and instruments delivered together with this Agreement or in connection herewith (the “Transaction
Documents”) and to perform its obligations hereunder and thereunder. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action, and no further consent or authorization of the Company’s Board of Directors
(the “Board”), any committee of the Board, or the Company’s stockholders is required. The Transaction
Documents have been duly authorized, executed and delivered by the Company and constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights
generally and to general principles of equity.
2.3
Approvals and Consents. The Company is not required 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
the Transaction Documents or to issue and sell the Note in accordance with the terms hereof, provided that for purposes of the
representation made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and
agreements of Purchaser herein.
2.4
Due and Valid Issuance. The Note, when issued and fully paid for in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable.
2.5
Material Compliance with Applicable Laws. Neither the Company nor any of its subsidiaries is in material violation of,
and neither the execution, delivery nor performance of any of the Transaction Documents has or will result in a violation of,
any federal, state, local or foreign law, rule, regulation, order, judgment or decree applicable to the Company or any of its
subsidiaries, except that as of the date hereof the Company has not filed with the Securities and Exchange Commission the financial
statements required by Item 9.01(a) and (b) of Form 8-K in connection with the Company’s acquisition of substantially all
of the assets of KBS Building Systems, Inc. and its related entities on April 2, 2014.
2.6
Finders. The Company has not retained any finder, broker, agent, financial advisor or other intermediary in connection
with the transactions contemplated by this Agreement. The Company agrees to indemnify and hold harmless Purchaser, its officers,
directors, affiliates, subsidiaries, employees and agents (as applicable) from liability for any compensation to any such intermediary
retained by the Company and the fees and expenses of defending against such liability or alleged liability.
2.7
Survival. The foregoing representations, warranties and agreements shall survive the execution of this Agreement indefinitely.
3.
Representations and Warranties of Purchaser. Purchaser hereby represents and warrants to and agrees with the Company as
follows:
3.1
Organization of Purchaser. Purchaser is a limited partnership duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization and has the requisite entity power to own its assets and to carry on its business.
3.2
Authorization. Purchaser has the requisite power and authority to enter into and perform the Transaction Documents and
to purchase the Note being sold to it hereunder. The execution, delivery and performance of the Transaction Documents by Purchaser
and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary entity
action, and no further consent or authorization of Purchaser or its partners or members, as the case may be, is required. The
Transaction Documents have been duly authorized, executed and delivered by Purchaser and constitute, or shall constitute when
executed and delivered, valid and binding obligations of Purchaser enforceable against Purchaser in accordance with the terms
thereof, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights generally and to general principles of equity.
3.3
Approvals and Consents. Purchaser is not required 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
the Transaction Documents or to purchase the Note in accordance with the terms hereof, provided that for purposes of the representation
made in this sentence, Purchaser is assuming and relying upon the accuracy of the relevant representations and agreements of the
Company herein.
3.4
Investment. Purchaser is acquiring the Note for its own account as principal, not as a nominee or agent, for investment
purposes only, and not with a view to, or for, resale, distribution or fractionalization thereof in whole or in part and no other
person or entity has a direct or indirect beneficial interest in the Note. Purchaser does not have any contract, undertaking,
agreement or arrangement with any person or entity to sell, transfer or grant participations to such person or entity or to any
third person or entity with respect to the Note.
3.5
Exemption From Registration. Purchaser acknowledges that the sale of the Note is intended to be exempt from registration
under the Securities Act by virtue of Section 4(2) of the Securities Act. In furtherance thereof, Purchaser represents and warrants
to the Company as follows:
(i)
Purchaser realizes that the basis for the exemption from registration under the Securities Act may not be present if, notwithstanding
any representation and/or warranty to the contrary contained in this Agreement, Purchaser has in mind merely acquiring the Note
for a fixed or determinable period of time;
(ii)
Purchaser has the financial ability to bear the economic risk of its investment in the Note, has adequate means for providing
for its current needs and contingencies and has no need for liquidity with respect to its investment in the Company; and
(iii)
Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks
of an investment in the Note.
3.6
Accredited Investor. Purchaser is an “accredited investor,” as that term is defined in Rule 501 of Regulation
D.
3.7
Available Information. Purchaser:
(i)
Has been furnished by the Company in connection with the sale of the Note with all information regarding the Company, the terms
and conditions of the sale of the Note and any additional information that Purchaser, its representative, attorney and/or accountant
has requested a reasonable time prior to the date hereof;
(ii)
Has been provided an opportunity for a reasonable time prior to the date hereof to obtain additional information concerning the
sale of the Note, the Company and all other information to the extent the Company possesses such information or can acquire it
without unreasonable effort or expense;
(iii)
Has been given the opportunity for a reasonable time prior to the date hereof to ask questions of, and receive answers from, the
Company or its representatives concerning the terms and conditions of the sale of the Note and other matters pertaining to an
investment in the Note, or that which was otherwise provided in order for them to evaluate the merits and risks of a purchase
of the Note to the extent the Company possesses such information or can acquire it without unreasonable effort or expense;
(iv)
Has not been furnished with any oral representation or oral information in connection with the sale of the Note; and
(v)
Has determined that the Note is a suitable investment for Purchaser and that at this time Purchaser could bear a complete loss
of its investment in the Note.
3.8
Purchaser Representative. Purchaser is not relying on any statements or representations made by the Company or its affiliates
or any purchaser representative with respect to economic considerations involved in an investment in the Note.
3.9
Transfer Restrictions. Purchaser shall not sell or otherwise transfer the Note without registration under the Securities
Act or subject to an exemption therefrom, and Purchaser fully understands and agrees that Purchaser must bear the economic risk
of Purchaser’s purchase because, among other reasons, the Note has not been registered under the Securities Act or under
the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless they are
subsequently registered under the Securities Act and under the applicable securities laws of such states, or unless exemptions
from such registration requirements are available. In particular, Purchaser is aware that the Note falls within the definition
of “restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act. Purchaser further
understands that sale or transfer of the Note is further restricted by state securities laws and the provisions of this Agreement.
3.10
Entire Agreement. No representation or warranty has been made to Purchaser by the Company, or any officer, director, employee,
agent, affiliate or subsidiary of the Company other than those contained herein and, in purchasing the Note, Purchaser is not
relying upon any representations other than those contained herein.
3.11
Purchaser Information. Any information that Purchaser has previously furnished, or is now furnishing to the Company with
respect to Purchaser’s financial position and business experience is correct and complete as of the date of this Agreement
and, if there should be any material change in such information, Purchaser will immediately furnish revised or corrected information
to the Company.
3.12
Legends. Purchaser understands and acknowledges that that the Note may be endorsed with substantially the following legends:
(i)
“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“ACT”), OR UNDER ANY
STATE SECURITIES LAW AND THESE SECURITIES MAY NOT BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT WITH RESPECT THERETO UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR UNLESS THE COMPANY RECEIVES AN OPINION
OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT REQUIRED.”; and
(ii)
any other legends required by applicable state or federal securities laws or any applicable state laws regulating the Company’s
business.
3.13
Non-Marketable Investments. Purchaser’s overall commitment to investments that are not readily marketable is not
disproportionate to Purchaser’s net worth, and an investment in the Note will not cause such overall commitment to become
excessive.
3.14
Finders. Purchaser has not retained any finder, broker, agent, financial advisor or other intermediary in connection with
the transactions contemplated by this Agreement and agrees to indemnify and hold harmless the Company, its officers, directors,
affiliates, subsidiaries, employees and agents from liability for any compensation to any such intermediary retained by Purchaser
and the fees and expenses of defending against such liability or alleged liability.
3.15
Survival. The foregoing representations, warranties and agreements shall survive the execution of this Agreement indefinitely.
4.
Covenants.
4.1
Use of Proceeds. The proceeds from the purchase and sale of the Note shall be used by the Company for general working capital
purposes.
4.2
Indemnification by the Company. The Company hereby agrees to reimburse, defend, indemnify and hold harmless Purchaser and
its affiliates and its and their respective directors, officers, employees, stockholders, members, managers, partners, agents,
attorneys, representatives, successors and permitted assigns (the “Purchaser Indemnified Parties”) from and
against any and all losses, damages, actions, proceedings, causes of action, liabilities, claims, encumbrances, penalties, demands,
assessments, settlements, judgments, costs and expenses, including court costs and reasonable attorneys’ fees and disbursements,
incurred by the Purchaser Indemnified Parties relating to, based upon, resulting from or arising out of (a) any inaccuracy or
breach of any of the representations or warranties made by the Company in this Agreement or (b) any breach of or failure to perform
any covenant or agreement made by the Company in this Agreement.
5.
General Provisions.
5.1
Entire Agreement; Amendment and Waiver. This Agreement, together with the Note, constitutes the entire agreement between
the parties hereto with respect to the subject matter contained herein and supersedes all prior oral or written agreements, if
any, between the parties hereto with respect to such subject matter, and, except as otherwise expressly provided herein, is not
intended to confer upon any other person any rights or remedies hereunder. Any failure by the Company or Purchaser to enforce
any rights hereunder shall not be deemed a waiver of such rights. This Agreement may not be amended or modified or the provisions
hereof waived (either generally or in a particular instance and either retroactively or prospectively) without the prior written
consent of the party against whom such amendment, modification, or waiver is sought to be enforced.
5.2
Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when delivered personally,
one day after being delivered to a nationally recognized overnight courier or on the business day received (or the next business
day if received after 5:00 p.m. local time or on a weekend or day on which banks are closed) when sent via facsimile (with a confirmatory
copy sent by overnight courier) to the parties at the following addresses (or at such other address for a party as shall be specified
by like notice):
If
to Purchaser:
Lone
Star Value Co-Invest I, LP
53
Forest Avenue, 1st Floor
Old
Greenwich, Connecticut 06870
Fax:
(203) 990-0727
If
to the Company:
Aetrium
Incorporated
2350
Helen Street
North
St. Paul, Minnesota 55109
Fax: (651) 770-7975
With
a copy to (which shall not constitute notice):
Olshan
Frome Wolosky LLP
Park
Avenue Tower
65
East 55th Street
New
York, New York 10022
Attn:
Adam Finerman, Esq.
Fax:
(212) 451-2222
5.3
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota
applicable to contracts made and performed in such State, without reference to conflict of law rules that would require the application
of the laws of another jurisdiction.
5.4
Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns. No assignment of this Agreement or of any rights or obligations hereunder may be made by the
Company or Purchaser, directly or indirectly (by operation of law or otherwise), without the prior written consent of the other
party hereto, and any attempted assignment without the required consents shall be void; provided, however, that
Purchaser may assign its rights, interests and obligations hereunder to any affiliate; provided, further, that no
assignment of any obligations hereunder shall relieve the parties hereto of any such obligations. Upon any such permitted assignment,
the references in this Agreement to Purchaser shall also apply to any such assignee unless the context otherwise requires.
5.5
Expenses; Litigation Costs. All costs and expenses incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses. In any action brought by a party hereto to enforce the obligations
of any other party hereto, the prevailing party shall be entitled to collect from the opposing party to such action such party’s
reasonable litigation costs and attorney’s fees and expenses (including court costs, reasonable fees of accountants and
experts, and other expenses incidental to the litigation).
5.6
Headings. The headings or captions contained in this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
5.7
Pronouns. Whenever the pronouns “it” or “its” are used herein, they shall also be deemed to mean
“he” or “his” or “she” or “hers” whenever applicable. Words in the singular shall
be read and construed as though in the plural and words in the plural shall be read and construed as though in the singular in
all cases where they would so apply.
5.8
Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any
law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long
as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated
to the greatest extent possible.
5.9
Information Confidential. Purchaser acknowledges that the information received by it pursuant hereto may be confidential
and is for its use only. Purchaser agrees that it will not use such information in violation of the Exchange Act, or reproduce,
disclose or disseminate such information to any other person, unless the Company has made such information available to the public
generally.
5.10
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original
copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and the same agreement, and photostatic,
.pdf or facsimile copies of fully-executed counterparts of this Agreement shall be given the same effect as originals.
[Signature
Page FollowS]
[SIGNATURE
PAGE TO SECURITIES PURCHASE AGREEMENT]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the day and year first above written.
|
Aetrium
Incorporated |
|
|
|
|
By: |
/s/ Paul Askegaard |
|
Name: |
Paul
Askegaard |
|
Title: |
Chief
Financial Officer |
|
Lone
Star Value Co-Invest I, LP |
|
|
|
|
By:
|
Lone
Star Value Investors GP, LLC, |
|
|
its
General Partner |
|
|
|
|
By: |
/s/ Jeffrey E. Eberwein |
|
Name: |
Jeffrey
E. Eberwein |
|
Title: |
Manager |
Exhibit
A
Form
of Promissory Note