Stock Purchase Agreement [Series B Convertible Preferred] [Amendment No. 1] - Odyssey Marine Exploration Inc. and MacDougald Family LP
ODYSSEY MARINE EXPLORATION, INC.
First Amendment
To
Series B Convertible Preferred Stock Purchase Agreement
First Amendment To Series B Convertible Preferred Stock Purchase
Agreement (this "First Amendment") dated as of October 12, 2001 is entered into
by and between Odyssey Marine Exploration, Inc., a Nevada corporation (the
"Company"), and the Macdougald Family Limited Partnership, a Nevada limited
partnership (the "Purchaser").
WHEREAS, the parties hereto and the Founders entered into a Series B
Convertible Preferred Stock Purchase Agreement, dated as of February 28, 2001
(the "Series B Purchase Agreement"), pursuant to which the Company sold 864,008
shares of Common Stock, 850,000 shares of Series B Preferred Stock, and
1,889,000 Warrants to purchase Common Stock to the Purchaser;
WHEREAS, the Company and the Purchase each desire that the Purchaser
convert all of the currently issued and outstanding Series B Preferred Stock
pursuant to the provisions of the Series B Purchase Agreement;
WHEREAS, as an inducement and a condition to the Purchaser's conversion
of the Series B Preferred Stock, the Company has agreed to grant additional
registration rights to the Purchaser under the Registration Rights Agreement,
dated February 28, 2001 (the "Registration Rights Agreement");
WHEREAS, concurrently with the execution of an amended and restated
Registration Rights Agreement ("Amended and Restated Registration Rights
Agreement") granting to the Purchaser up to five demand registration rights on
registration statements other than Form S-3, the Purchaser has agreed to
concurrently enter into this First Amendment to eliminate certain of its rights
under the Series B Purchase Agreement;
WHEREAS, an amendment of the Series B Purchase Agreement requires the
approval of the Company and the holders of at least 90% of all of the
outstanding Series B Preferred Stock or, if no Series B Preferred Stock is
outstanding, then by the holders of at least 90% of the Common Stock issued or
issuable upon conversion of the Series B Preferred Stock (none of which have
been converted as of the date hereof); and
WHEREAS, the Purchaser, as holder of all of the outstanding shares of
Series B Preferred Stock, and the Company now desire to amend the Series B
Purchase Agreement on the terms and conditions set forth in this First
Amendment;
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
representations, warranties, covenants, and agreements herein contained, the
parties hereto agree as follows:
1. Revised Provisions. The following amendments to the Series B Purchase
Agreement shall become effective upon the later of: (i) the execution of the
Amended and Restated Registration Rights Agreement by the Company and the
Purchaser, and (ii) the conversion of the Series B Preferred Stock by the
Purchaser:
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(a) Section 8.1 of the Series B Purchase Agreement is hereby amended by
deleting Section 8.1 of the Series B Purchase Agreement in its entirety.
(b) Section 8.2(c) of the Series B Purchase Agreement is hereby amended
by deleting Section 8.2(c) of the Series B Purchase Agreement in its entirety.
(c) Section 8.3(c) of the Series B Purchase Agreement is hereby amended
by deleting Section 8.3(c) of the Series B Purchase Agreement in its entirety.
(d) Section 8.4 of the Series B Purchase Agreement is hereby amended by
deleting Section 8.4 of the Series B Purchase Agreement in its entirety.
(e) Section 8.6 of the Series B Purchase Agreement is hereby amended by
deleting Section 8.6 of the Series B Purchase Agreement in its entirety.
(f) Section 8.8(b) of the Series B Purchase Agreement is hereby amended
by deleting Section 8.8(b) of the Series B Purchase Agreement in its entirety.
2. Defined Terms. All terms which are capitalized but are not otherwise
defined herein shall have the meaning ascribed to them in the Series B Purchase
Agreement.
3. Inconsistent Provisions. All provisions of the Series B Purchase
Agreement which have not been amended by this First Amendment shall remain in
full force and effect. Notwithstanding the foregoing to the contrary, to the
extent that there is any inconsistency between the provisions of the Series B
Purchase Agreement and this First Amendment, the provisions of this First
Amendment shall control and be binding.
4. Counterparts. This First Amendment may be executed in one or more
counterparts, all of which taken together shall constitute a single instrument.
Execution and delivery may be by facsimile transmission.
[Remainder Of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused this First
Amendment to be executed on its behalf, all as of the date first written above.
COMPANY:
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ODYSSEY MARINE EXPLORATION, INC.,
a Nevada corporation
By: /s/ John C. Morris
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John C. Morris,
President
PURCHASER:
---------
MACDOUGALD FAMILY LIMITED
PARTNERSHIP, a Nevada limited partnership
By: MACDOUGALD MANAGEMENT, INC.,
a Nevada corporation, General Partner
By: /s/ James E. MacDougald
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James E. MacDougald,
President
Signature Page to First Amendment to Series B Convertible Preferred Stock
Purchase Agreement
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