Exhibit 10.1





EXHIBIT 10.1




SECURITIES PURCHASE AGREEMENT




This Securities Purchase Agreement (this “Agreement”), dated as of November 18, 2009,
is entered into by and between Helios & Matheson North America, Inc., a Delaware corporation (the
“Company”), and Helios & Matheson Information Technology Ltd., an India corporation (the
“Purchaser”).



WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to
Section 4(2) of the Securities Act and Rule 506 promulgated thereunder, or, alternatively,
Regulation S promulgated thereunder, the board of directors of the Company has authorized the sale
and issuance to the Purchaser of $1,000,000 of Common Stock, for a price per share to be determined
as provided herein, subject to the terms and conditions of this Agreement (the “Offering”).



NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the Company and the Purchaser agree as follows:



ARTICLE I.

DEFINITIONS




1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, the
following terms have the meanings indicated in this Section 1.1:




“Affiliate” means any Person that, directly or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with a Person, as
such terms are used in and construed under Rule 144 under the Securities Act.




“Business Day” means any day except Saturday, Sunday, any day which shall be a
federal legal holiday in the United States or any day on which banking institutions in the
State of New York are authorized or required by law or other governmental action to close or
any day that the Common Stock is not traded on the NASDAQ Stock Market.




“Closing” means the closing of the purchase and sale of the Securities pursuant
to Section 2.1.




“Closing Date” means the Business Day when this Agreement has been executed and
delivered by the Company and the Purchaser, and all conditions precedent to (i) the
Purchaser’s obligations to pay the Subscription Amount and (ii) the Company’s obligations to
deliver the Securities have been satisfied or waived; provided that the Closing Date shall
be no later than November 20, 2009, unless otherwise agreed by the Company.




“Commission” means the United States Securities and Exchange Commission.


 


 









 






“Common Stock” means the common stock of the Company, $0.01 par value per
share, and any other class of securities into which such securities may hereafter be
reclassified or changed into.




“Offering” has the meaning set forth in the recitals hereof.




“Person” means an individual or corporation, partnership, trust, incorporated
or unincorporated association, joint venture, limited liability company, joint stock
company, government (or an agency or subdivision thereof) or other entity of any kind.




“Registration Statement” means a registration statement filed with the
Commission covering the resale of the Securities.




“Rule 144” means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission having substantially the same effect as such
Rule.




“Securities” means the number of shares of Common Stock to be purchased by
Purchaser pursuant to this Agreement, determined by dividing the Subscription Amount by the
greater of $0.81 and the closing bid price per share of the Common Stock on the Closing
Date, as reported by Bloomberg LP on the Closing Date.




“Securities Act” means the Securities Act of 1933, as amended, and the rules
and regulations promulgated hereunder.




“Subscription Amount” means the amount of United States Dollars, in immediately
available funds, set forth on the Purchaser’s signature page hereto.



ARTICLE II.

PURCHASE AND SALE




2.1 Closing. On the Closing Date, upon the terms and subject to the conditions set
forth herein, the Company agrees to sell and the Purchaser agrees to purchase the Securities. The
Closing shall occur upon satisfaction of the deliveries and conditions set forth in Sections 2.2
and 2.3.



2.2 Deliveries.




(a) On the Closing Date, the Company shall deliver or cause to be delivered to the
Purchaser the following:




(i) this Agreement duly executed by the Company;
and




(ii) a certificate issued in the name of the Purchaser representing the
Securities, or, if acceptable to the Purchaser for the purpose of the Closing, a
copy of such certificate provided by the Company’s stock transfer agent; provided,
however, the Purchaser may waive such condition and allow the Company to have such
certificate prepared and delivered to the Purchaser as soon as commercially
practicable following the Closing.


 


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(b) On the Closing Date, the Purchaser shall deliver or cause to be delivered to the
Company the following:




(i) this Agreement duly executed by the Purchaser;
and




(ii) the Subscription Amount by wire transfer to the Company.



2.3 Closing Conditions.




(a) The obligations of the Company hereunder in connection with the Closing are subject
to the following conditions being met:




(i) the accuracy in all material respects when made and on the Closing Date of
the representations and warranties of the Purchaser contained herein; and




(ii) the delivery by the Purchaser of the items set forth in Section 2.2(b) of
this Agreement.




(b) The obligations of the Purchaser hereunder in connection with the Closing are
subject to the following conditions being met:




(i) the accuracy in all material respects when made and on the Closing Date of
the representations and warranties of the Company contained herein;




(ii) the delivery by the Company of the items set forth in Section 2.2(a) of
this Agreement; and




(iii) the Company shall have completed a merger with Helios & Matheson North America, Inc., a
New York corporation (“HMNA NY”), as described in HMNA NY’s Definitive Proxy Statement filed with
the Commission on October 6, 2009.



ARTICLE III.

REPRESENTATIONS AND WARRANTIES




3.1 Representations and Warranties of the Company. The Company hereby represents and
warrants as of the date hereof and as of the Closing Date to the Purchaser as follows:




(a) Organization and Qualification. The Company is an entity duly
incorporated, validly existing and in good standing under the laws of the State of Delaware,
USA, with the requisite power and authority to own and use its properties and assets and to
carry on its business as currently conducted.


 


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(b) Authorization; Enforcement. The Company has the requisite corporate power
and authority to enter into and to consummate the transactions contemplated by this
Agreement and otherwise to carry out its obligations hereunder. The execution and delivery
of this Agreement by the Company and the consummation by it of the transaction contemplated
hereby have been duly authorized by the Company’s board of directors and no further action
is required by the Company’s board of directors or its stockholders in connection herewith.




(c) Issuance of the Securities. The Securities are duly authorized and, when
issued and paid for in accordance with this Agreement, will be duly and validly issued,
fully paid and non-assessable.



3.2 Representations and Warranties of the Purchaser. The Purchaser hereby represents
and warrants as of the date hereof and as of the Closing Date to the Company as follows:




(a) Organization; Authority. The Purchaser is an entity duly organized,
validly existing and in good standing under the laws of India with full right and corporate
or partnership power and authority to enter into and consummate the transaction contemplated
by this Agreement. The execution, delivery and performance by the Purchaser of the
transaction contemplated by this Agreement has been duly authorized by all necessary
corporate or similar action on the part of the Purchaser.




(b) Own Account. The Purchaser understands that the Securities are “restricted
securities” and have not been registered under the Securities Act or any applicable U.S.
state securities law and is acquiring the Securities as principal for its own account and
not with a view to or for distributing or reselling such Securities or any part thereof in
violation of the Securities Act or any applicable U.S. state securities law, has no present
intention of distributing any of such Securities in violation of the Securities Act or any
applicable state securities law and has no direct or indirect arrangement or understandings
with any other persons to distribute or regarding the distribution of such Securities in
violation of the Securities Act or any applicable U.S. state securities law (this
representation and warranty not limiting the Purchaser’s right to sell or otherwise transfer
the Securities in compliance with applicable U.S. Federal and state securities laws).




(c) Purchaser Status. At the time the Purchaser was offered the Securities, it
was, and at the date hereof it is, an “accredited investor” as defined in Rule 501 under the
Securities Act.




(d) Experience of the Purchaser. The Purchaser, either alone or together with
its representatives, has such knowledge, sophistication and experience in business and
financial matters as to be capable of evaluating the merits and risks of the prospective
investment in the Securities and has so evaluated the merits and risks of such investment.
The Purchaser is able to bear the economic risk of an investment in the Securities.


 


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(e) General Solicitation. The Purchaser is not purchasing the Securities as a
result of any advertisement, article, notice or other communication regarding the Securities
published in any newspaper, magazine or similar media or broadcast over television or radio
or presented at any seminar or any other general solicitation or general advertisement.




(f) Access to Company Information. The Purchaser acknowledges that it has been
afforded access and the opportunity to obtain all financial and other information concerning
the Company that the Purchaser desires (including the opportunity to meet with the Company’s
executive officers, either in person or telephonically). The Purchaser has reviewed copies
of the Company’s periodic and current reports filed with the Commission since January 1,
2008 and is familiar with the contents thereof, including, without limitation, the risk
factors contained in the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2008, and there is no further information about the Company that the Purchaser
desires in determining whether to acquire the Securities.




(g) No Broker’s Fees. The Company shall not be obligated to pay any commission,
brokerage fee, or finder’s fee based on any alleged agreement or understanding between the
Purchaser and a third person in respect of the transactions contemplated hereby.



ARTICLE IV.

OTHER AGREEMENTS OF THE PARTIES





4.1 Transfer Restrictions.




(a) The Securities may only be disposed of in compliance with U.S. state and Federal
securities laws. In connection with any transfer of Securities, the Company or its stock
transfer agent may require the transferor thereof to provide to the Company an opinion of
counsel selected by the transferor and reasonably acceptable to the Company, the form and
substance of which opinion shall be reasonably satisfactory to the Company, to the effect
that such transfer does not require registration of such transferred Securities under the
Securities Act.




(b) The Purchaser agrees to the imprinting, so long as is required by this Section 4.1,
of a legend on any of the Securities in substantially the following form:




THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO
THE COMPANY.


 


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(c) The Purchaser agrees that the removal of the restrictive legend from certificates
representing Securities as set forth in this Section 4.1 is predicated upon the Company’s
reliance that the Purchaser will sell any Securities pursuant to either the registration
requirements of the Securities Act, including any applicable prospectus delivery
requirements, or an exemption therefrom, and that if Securities are sold pursuant to a
Registration Statement, they will be sold in compliance with the plan of distribution set
forth therein.



ARTICLE V.

MISCELLANEOUS




5.1 Entire Agreement. This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof and supersedes all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge have been merged into
this Agreement.



5.2 Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given and effective on
the earliest of (a) the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number set forth on the signature pages attached hereto prior to 5:30
p.m. (New York City time) on a Business Day, (b) the next Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the facsimile number
set forth on the signature pages attached hereto on a day that is not a Business Day or later than
5:30 p.m. (New York City time) on any Business Day, (c) the 2nd Business Day following
the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (d) upon
actual receipt by the party to whom such notice is required to be given. The address for such
notices and communications shall be as set forth on the signature pages attached hereto.



5.3 Amendments; Waivers. Except as otherwise set forth herein, any provision of this
Agreement may be waived, modified, supplemented or amended in a written instrument signed by the
Company and the Purchaser. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver
of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of any party to exercise any right hereunder in any manner impair the
exercise of any such right.



5.4 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted assigns. Neither the Company nor the
Purchaser may assign this Agreement or any rights or obligations hereunder without the prior
written consent of the other (other than by operation of law).



5.5 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other Person.


 


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5.6 Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of Delaware, without regard to the principles of conflicts of
law thereof. Each party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement (whether brought against
a party hereto or its respective affiliates, directors, officers, shareholders, employees or
agents) shall be commenced exclusively in the state or Federal courts sitting in the City of New
York, New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state
and Federal courts sitting in the City of New York for the adjudication of any dispute hereunder or
in connection herewith or with the transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of any such court, that such suit, action or
proceeding is improper or is an inconvenient venue for such proceeding. The parties hereby waive
all rights to a trial by jury. If either party shall commence an action or proceeding to enforce
any provisions of this Agreement, then the prevailing party in such action or proceeding shall be
reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such action or proceeding.



5.7 Survival. The representations and, warranties, shall survive the Closing and the
delivery, of the Securities, for the applicable statue of limitations.



5.8 Execution. This Agreement may be executed in two or more counterparts, all of
which when taken together shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other party, it being
understood that both parties need not sign the same counterpart. In the event that any signature
is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature
page were an original thereof.



5.9 Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties
that they would have executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or unenforceable.



5.10 Construction. The parties agree that each of them and/or their respective counsel
has reviewed and had an opportunity to revise this Agreement and, therefore, the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments hereto.



(Signature Pages Follow)




 


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IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be
duly executed by their respective authorized signatories as of the date first indicated above.



	 	 	 
	HELIOS & MATHESON NORTH AMERICA, INC.,

	 	Address for Notice:
	a Delaware corporation
	 	 
	 

	 	200 Park Avenue South, Ste 901
	 

	 	New York, New York 10003
	 

	 	Attention: Chief Executive Officer
	 

	 	Fax 212-979-2517






	 	 	 	 	 
	By:

	 	/s/ Salvatore M. Quadrino
 

Name: Salvatore M. Quadrino
	 	 
	 

	 	Title:   Interim Chief Executive Officer	 	 






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




Kevin Friedmann, Esq.

Richardson & Patel, LLP

Fax: (917) 591-6898

Email: kfriedmann@richardsonpatel.com




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGE FOR PURCHASER FOLLOWS]




 


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[HMIT SIGNATURE PAGE TO HMNA SECURITIES PURCHASE AGREEMENT]




IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly
executed by its authorized signatory as of the date first indicated above.



Name of Purchaser: Helios & Matheson Information Technology Ltd.



	 	 	 
	Signature of Authorized Signatory of Purchaser:

	 	/s/ V. Ramachandiran
	 

	 	 






	 	 	 
	Name of Authorized Signatory:

	 	V. Ramachandiran
	 
	 	 
	Title of Authorized Signatory:

	 	Chairman






Email Address of Authorized Signatory: ram@heliosmatheson.com




	 	 	 
	Facsimile Number of Purchaser:
	 	 
	 

	 	 






Address for Notice of Purchaser:



9 Nungambakkam High Road

Chennai 600 034

India




Subscription Amount: $1,000,000





 


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