Exhibit 10.1



 


Exhibit
10.1


 


Securities
PURCHASE AGREEMENT


 


SECURITIES
PURCHASE AGREEMENT (this “Agreement”), dated as of April 1, 2014, by and between Aetrium Incorporated, a Minnesota
corporation (the “Company”), and Lone Star Value Investors, LP (“Purchaser”).


 


WITNESSETH:


 


WHEREAS,
Purchaser directly owns 60,588 shares of the Company’s common stock, par value $0.001 per share (“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 Purchaser, and as the sole member of Lone Star Value Management, LLC, which serves as the investment
manager of Purchaser, and therefore may be deemed to beneficially own the securities held by 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, (i) a Promissory Note in the original principal amount of $6,000,000 (the “Promissory Note”) and
(ii) a Convertible Promissory Note in the original principal amount of $500,000 (the “Convertible Promissory Note”
and together with the Promissory Note, the “Securities”).


 


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 Securities. The terms and provisions of the Securities are more fully set
forth in the form of Promissory Note attached hereto as Exhibit A and the form of Convertible Promissory Note attached
hereto as Exhibit B. The purchase price to be paid by Purchaser to the Company to acquire the Securities shall be a
total of $6,500,000, including $6,000,000 with respect to the Promissory Note and $500,000 with respect to the Convertible
Promissory Note (collectively, 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 and an executed Convertible 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 Securities 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 Securities, when issued and fully paid for in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable. The shares of Common Stock issued or issuable upon conversion of the
Convertible Promissory Note (the “Conversion Shares”) have been duly authorized and reserved for issuance
upon such conversion, and when issued in accordance with the terms of the Securities, will be validly issued, fully paid and
non-assessable.


 


2.5 Material
Compliance with Applicable Laws. Neither the Company nor any of its subsidiaries are 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.


 


2.6 Finders.
Except for Oberon Securities, LLC, 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.


 




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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
Securities 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 Securities 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 Securities 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 Securities. 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 Securities.


 


3.5
Exemption From Registration. Purchaser acknowledges that the sale of the Securities 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 Securities for a fixed or determinable period of time;


 


(ii)
Purchaser has the financial ability to bear the economic risk of its investment in the Securities, 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 Securities.


 




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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 Securities with all information regarding the Company,
the terms and conditions of the sale of the Securities 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 Securities, 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 Securities and other matters
pertaining to an investment in the Securities, or that which was otherwise provided in order for them to evaluate the merits
and risks of a purchase of the Securities 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 Securities;
and


 


(v)
Has determined that the Securities are a suitable investment for Purchaser and that at this time Purchaser could bear a
complete loss of its investment in the Securities.


 


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 Securities.


 


3.9 Transfer
Restrictions. Purchaser shall not sell or otherwise transfer the Securities or any of the Conversion Shares 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, neither the Securities nor
the Conversion Shares have 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 Securities are, and the Conversion Shares will be when issued,
“restricted securities,” as such term is defined in Rule 144 promulgated under the Securities Act. Purchaser
further understands that sale or transfer of the Securities and the Conversion Shares is further restricted by state
securities laws and the provisions of this Agreement.


 




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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 Securities, 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 Securities and each certificate representing the Conversion Shares 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 Securities 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.


 




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4. Covenants.


 


4.1 Use
of Proceeds. The proceeds from the purchase and sale of the Securities 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.


 


4.3 Registration
Rights. The Company and Purchaser shall, promptly after the date hereof, enter into a Registration Rights Agreement on
terms and conditions which are (a) usual and customary in like transactions and (b) approved by each of them in the
discretion of each reasonably exercised.


 


5. General
Provisions.


 


5.1 Entire
Agreement; Amendment and Waiver. This Agreement, together with the Promissory Note and the Convertible Promissory 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 Investors, LP


53 Forest Avenue, 1st Floor


Old Greenwich, Connecticut 06870


Fax: (203) 990-0727


 


With
a copy to (which shall not constitute notice):


 


Dorwart
Lawyers


Old
City Hall


124
East Fourth Street


Tulsa,
Oklahoma 74103-5010


Attn:
Frederic Dorwart, Esq.


Fax:
(918) 583-8251


 




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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).


 




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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]


 




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[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 Investors, LP


 


	 	By:	Lone Star
    Value Investors GP, LLC,
	 	 	its General Partner


 


	 	By:	/s/
        Jeffrey E. Eberwein
	 	Name:	Jeffrey E. Eberwein
	 	Title:	Manager


 




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Exhibit
A


 


Form
of Promissory Note


 




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Exhibit
B


 


Form
of Convertible Promissory Note


 




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