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EXHIBIT 10.1
MARINE MANAGEMENT SYSTEMS, INC.
PREFERRED STOCK PURCHASE AGREEMENT
THIS PREFERRED STOCK PURCHASE AGREEMENT ("Agreement") is made
and entered into this 8th day of April, 1998 by and between MARINE MANAGEMENT
SYSTEMS, INC., a Delaware corporation (the "Company"), and the purchasers listed
on Exhibit A annexed hereto (the "Purchasers" and individually, a "Purchaser").
R E C I T A L S:
A. The Company desires to exchange shares of Preferred Stock
(as defined below) for certain outstanding indebtedness of the Company held by
the Purchasers and listed on Exhibit A hereto (the "Promissory Notes"); and
B. The Purchasers desire to exchange such Company indebtedness
for shares of Preferred Stock on the terms and conditions set forth herein.
A G R E E M E N T:
NOW, THEREFORE, IT IS AGREED as follows:
1. EXCHANGE OF INDEBTEDNESS FOR SERIES A PREFERRED STOCK.
1.1 Subject to the terms and conditions hereof, the
Purchasers hereby agree to purchase from the Company, and the Company has
offered and hereby agrees to issue and sell shares of Series A Preferred Stock,
to be issued pursuant to the Certificate of Designation in the form attached
hereto as Exhibit B (the "Preferred Stock") for delivery at the respective
offices of the Purchasers, against receipt by the Company of the Promissory
Notes of the Company in the respective amounts set forth opposite the
Purchasers' names in Exhibit A. The number of shares of Preferred Stock to be
issued to Purchaser is set forth opposite each Purchaser's name on Exhibit A and
is determined based upon one share of Preferred Stock, with a liquidation
preference of $1,000 per share for each $1,000 in outstanding principal amount
of Promissory Notes.
a) The purchase price for the Preferred Stock to be
purchased by the Purchasers hereunder shall be an aggregate of $651,000 (the
"Purchase Price"). The Purchasers shall pay the
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Purchase Price by tendering the Promissory Notes for cancellation by the
Company. Upon the Company's receipt of such Promissory Notes and issuance of the
shares of Preferred Stock, the Promissory Notes shall be cancelled and the
Company shall have no liability thereunder. Simultaneously against the receipt
by the Company of the Promissory Notes, the Company shall deliver one or more
duly authorized, issued and executed certificates for shares of Preferred Stock
(I/N/O each Purchaser) (the "Certificates").
2. RESERVED
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants that:
3.1 It is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware, and duly
qualified to do business and in good standing as a foreign corporation in all
jurisdictions in which the failure to so qualify would be reasonably likely to
have a material adverse effect on the business, properties, prospects, condition
(financial or otherwise) or results of operations of the Company or on the
consummation of any of the transactions contemplated by this Agreement (a
"Material Adverse Effect"). The Company has full power and authority, corporate
and otherwise, to enter into and perform this Agreement, and to make, execute
and deliver the various instruments and documents provided for herein.
3.2 The execution, delivery and performance by the
Company of this Agreement and the Certificates, and the making, execution and
delivery by the Company of the instruments contemplated hereby, have been duly
authorized by all necessary corporate action and will not violate any provision
of law, court order or decree, or of its Certificate of Incorporation or Bylaws,
or result in the breach of, or constitute a default under, or result in the
creation of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to any agreement or instrument to which it is a party, or by
which it or its property may be bound or affected. This Agreement is a valid and
binding obligation of the Company, enforceable in accordance with its respective
terms.
3.3 The shares of Series A Preferred Stock, when
approved by the Company's stockholders, will be duly authorized and, when
issued, validly issued, fully paid and nonassessable.
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3.4 Upon approval of the Amendment referred to below
in Section 5, the shares of Common Stock issuable upon conversion of the
Preferred Stock shall be duly authorized and, at all times prior to the
conversion of the Preferred Stock, duly reserved for issuance and, when issued
upon such conversion, will be validly issued, fully paid and nonassessable.
3.5 Based, in part, upon the representations of the
Purchasers set forth in Section 4 hereof, the offer and sale by the Company of
the Preferred Stock is exempt from (i) the registration and prospectus delivery
requirements of the Securities Act and the rules and regulations of the
Commission thereunder and (ii) the registration and/or qualification provisions
of all applicable state securities and "blue sky" laws.
4. REPRESENTATIONS OF THE PURCHASERS. This Agreement is made
with each Purchaser by the Company in reliance upon each Purchaser's
representations to the Company, which by each Purchaser's acceptance hereof,
each Purchaser confirms, that (a) Purchaser is acquiring the shares of Preferred
Stock to be delivered for its own account and not for the beneficial interest of
any other person, and not with a view to the distribution thereof, and that
Purchaser will not distribute, sell or otherwise dispose of the shares of
Preferred Stock of the Company except as permitted under the Securities Act of
1933, as amended (the "Act"), the General Rules and Regulations thereunder, and
all applicable State "Blue Sky" laws; (b) Purchaser's financial circumstances
are such as to permit Purchaser to make this investment without having a present
intention or need to liquidate its investment; (c) Purchaser severally confirms
further that it has been advised that the shares of Preferred Stock have not
been registered under the Act, and that, accordingly, such shares of Preferred
Stock will be what is commonly known as "restricted securities," and are not
freely transferrable by Purchaser except pursuant to an exemption from
registration under the Act, such as Rule 144, the substance of which has been
explained to Purchaser or upon registration of the Preferred Stock under the
Act; (d) Purchaser is an "accredited investor" as that term is defined in SEC
Regulation D, (e) Purchaser has had the opportunity to discuss with Company
management the Company and its products, prospects, results of operation and
financial condition and to have access to any and all information regarding the
Company that Purchaser deems necessary to its decision to purchase the shares of
Preferred Stock, and (f) that the following legends shall be placed on the
shares of Preferred Stock:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, PURSUANT TO SECTION 4(2) OF SAID
ACT AND NOT WITH A VIEW TO OR IN CONNECTION WITH THE DISTRIBUTION
THEREOF. THE SHARES OF PREFERRED STOCK MAY NOT BE OFFERED FOR SALE OR
SOLD OR OTHERWISE DISPOSED OF EXCEPT UPON COMPLIANCE WITH SAID ACT."
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5. MEETING OF THE COMPANY'S SHAREHOLDERS.
The Company will take all action necessary in accordance with
the Delaware Law and the Company's Certificate of Incorporation and By-laws to
convene a meeting of its shareholders as promptly as practicable, but no later
than July 15, 1998 to consider and vote upon an amendment to the Company's
Certificate of Incorporation (the "Amendment") providing for the authorization
of the issue of the Preferred Stock substantially in the form of the Certificate
of Designation attached hereto as Exhibit B. The Board of Directors of the
Company shall, subject to fiduciary obligations under applicable law, recommend
that the shareholders of the Company vote to approve the Amendment. Subject to
fiduciary obligations under applicable law, the Company shall use its best
efforts to solicit from shareholders of the Company proxies in favor of such
approval and adoption and shall take all other action necessary or, in its
opinion, helpful to secure such favorable vote.
6. TRANSFER BY THE PURCHASER.
Neither the shares of Preferred Stock to be purchased by the
Purchasers, nor any interest therein, shall be sold, transferred, assigned, or
otherwise disposed of, unless the Company shall previously have received an
opinion of counsel knowledgeable in federal securities law, to the effect that
registration under the Act is not required in connection with such disposition
pursuant to the Act.
7. CLOSING DATE.
The date and time of the issuance and sale of the shares of
Preferred Stock (the "Closing Date") shall be no later than the fifth (5th)
business day occurring after approval of the Amendment. Notwithstanding anything
to the contrary contained herein, the closing shall be subject to the conditions
set forth in Sections 8 and 9.
8. CONDITIONS TO THE COMPANY'S OBLIGATIONS.
Each Purchaser understands that the Company's obligation to
sell the shares of Preferred Stock on the Closing Date to such Purchaser
pursuant to this Agreement is conditioned upon:
a) Delivery by the Purchasers to the Company of an
aggregate of Promissory Notes in the outstanding principal amount of $651,000
(the "Purchase Price");
b) There shall not be in effect any law or order,
ruling, judgment or writ of any court of public or governmental authority
restraining, enjoining or otherwise prohibiting any of the transactions
contemplated by this Agreement; and
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c) Approval of the Amendment by the shareholders of
the Company.
9. CONDITIONS TO PURCHASERS' OBLIGATIONS.
The Company understands that the Purchasers' obligations to
purchase the shares of Preferred Stock on the Closing Date pursuant to this
Agreement is conditioned upon:
a) Delivery by the Company to each Purchaser of one
or more Certificates (I/N/O each Purchaser) evidencing the shares of Preferred
Stock to be purchased by each such Purchaser pursuant to this Agreement;
b) Approval of the Amendment by the shareholders of
the Company; and
c) There shall not be in effect any law or order,
ruling, judgment or writ of any court or public or governmental authority
restraining, enjoining or otherwise prohibiting any of the transactions
contemplated by this Agreement.
10. NOTICES.
Any notice or demand required or desired to be given to or
served upon the Company or a Purchaser in connection herewith shall be in
writing and deemed to have been sufficiently given or served for all purposes
when delivered in person or when deposited in the United States mails, certified
or registered, postage prepaid, if to the Company, addressed or delivered as
follows:
If to the Company:
Marine Management Systems, Inc.
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: President
If to a Purchaser: at the address set forth on
Exhibit A annexed hereto.
or, if any other address shall at any time be designated by the Company or by a
Purchaser in writing in conformance with the provisions hereof, to such other
address.
11. PARTIES IN INTEREST.
All the terms and provisions of this Agreement shall bind and
inure to the benefit of the parties hereto and their respective successors and
assigns.
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12. GOVERNING LAW.
This Agreement shall be construed in accordance with and
governed by the laws of the State of New York.
13. SECTION AND OTHER HEADINGS.
Section and other headings herein are for reference purposes
only, and shall not be used in any way to govern, limit, modify, construe or
otherwise affect this Agreement.
14. COUNTERPARTS.
This Agreement may be executed with each Purchaser in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall be deemed but one and the same instrument.
15. AMENDMENT.
This Agreement may be amended by written agreement of the
Company and Purchasers representing sixty-six and two-thirds percent (66 2/3%)
of the aggregate Liquidation Preference represented by the shares of Preferred
Stock then outstanding solely with respect to the matters referred to herein.
Any such amendment, waiver or consent shall be binding upon the holders of all
Preferred Stock except as otherwise provided in the Certificate of Designation.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered on the date first above written by the duly authorized representative
of the Company.
"Company"
MARINE MANAGEMENT SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President and CEO
"Purchasers"
By: /s/ Xxxxxx X. Story
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Name: Xxxxxx X. Story
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
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EXHIBIT A
NO. OF SHARES OF
PRINCIPAL SERIES A PREFERRED
PURCHASER NAME AMOUNT OF STOCK ISSUED
AND ADDRESS PROMISSORY NOTES TO SUCH PURCHASER
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Xxxxxx X. Story $329,000 329
Xxxxxx X. Xxxxx $300,000 300
Xxxxxx X. Xxxxx, Xx. $ 22,000 22
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