EXECUTION COPY | ||||
AMENDMENT NO. 4 TO STOCK PURCHASE AGREEMENT | ||||
This AMENDMENT NO. 4 TO STOCK PURCHASE AGREEMENT (this | ||||
“Amendment”) is made and entered into as of June 8, 2007, by and among eLEC | ||||
Communications Corp., a New York corporation having an address at 75 South Broadway Suite | ||||
302 White Plains, NY 10601 (“Seller”), CYBD Acquisition II, Inc., a New York corporation | ||||
and wholly-owned subsidiary of Cyber Digital (as defined below) having an address at 400 Oser | ||||
Avenue, Hauppauge, New York 11788 (“Acquisition Sub”), and Cyber Digital, Inc., a New | ||||
York corporation having an address at 400 Oser Avenue, Hauppauge, New York 11788 (“Cyber | ||||
Digital” and, together with Acquisition Sub, collectively, “Purchaser”), to amend that certain | ||||
Stock Purchase Agreement, dated as of December 14, 2006, as amended to date, by and among | ||||
Seller, Acquisition Sub and Cyber Digital (as amended, the “Agreement”). Capitalized terms | ||||
used but not otherwise defined herein shall have the meanings ascribed to such terms in the | ||||
Agreement. | ||||
RECITALS | ||||
WHEREAS, the parties to the Agreement desire to amend the Agreement in accordance | ||||
with the terms of this Amendment; and | ||||
WHEREAS, Section 10.08 of the Agreement provides that the Agreement may be | ||||
amended by a written instrument signed by the parties to the Agreement. | ||||
NOW, THEREFORE, in consideration of the representations, warranties, covenants and | ||||
agreements hereinafter contained, and intending to be legally bound hereby, the parties hereby | ||||
agree as follows: | ||||
1.1 | Section 3.05(a) of the Agreement; Definition of “Outside Date”. Section 3.05(a) | |||
of the Agreement shall be deleted and replaced in its entirety with the following: | ||||
“(a) | at the election of either Purchaser or Seller at any time after June 22, 2007 | |||
(the “Outside Date”), if the Closing shall not have then occurred by the close of business | ||||
on such date, provided that neither Purchaser nor Seller shall be entitled to terminate this | ||||
Agreement on or after the Outside Date if the principal reason the transactions | ||||
contemplated hereby shall not have been consummated by such time is the willful and | ||||
material breach by such party (or in the case of Purchaser, by Cyber Digital or | ||||
Acquisition Sub) of any of its or their obligations under this Agreement;” | ||||
1.2 | Governing Law. All of the terms, conditions, and other provisions of this | |||
Amendment shall be interpreted and governed by reference to the laws of the State of New York, | ||||
and any dispute arising therefrom and the remedies available shall be determined in accordance | ||||
with such laws without giving effect to the principles of conflicts of law. | ||||
1.3 | Binding; No Assignment. This Amendment and all of the provisions hereof shall | |||
be binding upon and inure to the benefit of the parties hereto and their respective successors and | ||||
permitted assigns. Neither this Amendment nor any of the rights, interests or obligations | ||||
hereunder shall be assigned by any of the parties hereto without the prior written consent of the | ||||
other party, except by operation of law;provided,however, that (i) Acquisition Sub or Cyber |
Digital may assign all or part of this Amendment or its rights hereunder (a) to a Purchaser | ||
Affiliate, (b) to Laurus in connection with the New Note and the New Note Documents and (c) | ||
from and after the Closing, to a Person not a party to this Amendment which acquires all or | ||
substantially all of the assets of Acquisition Sub or Cyber Digital and who assumes all of the | ||
obligations of Acquisition Sub or Cyber Digital hereunder, as the case may be, provided in each | ||
such case that no such assignment shall release Acquisition Sub or Cyber Digital, as the case | ||
may be, from its duties and obligations hereunder, and (ii) Seller may assign all or part of this | ||
Amendment or its rights hereunder to an Affiliate of Seller who assumes all of the obligations of | ||
Seller hereunder, provided that no such assignment shall release Seller from its duties and | ||
obligations hereunder. | ||
1.4 | Counterparts. This Amendment may be executed simultaneously in two or more | |
counterparts, each of which shall be deemed an original, but all of which together shall constitute | ||
one and the same instrument. | ||
1.5 | Headings. The title of this Amendment and the headings of the Sections and | |
Articles of and the Schedules to this Amendment are for reference purposes only and shall not be | ||
used in construing or interpreting this Amendment. | ||
1.6 | Construction. Except as expressly set forth herein, all of the provisions of the | |
Agreement shall remain in full force and effect in accordance with their terms, and this | ||
Amendment shall reaffirm the Agreement in all respects. In the event of any conflict or | ||
inconsistency between the provisions of this Amendment and the provisions of the Agreement, | ||
the provisions of this Amendment shall govern. | ||
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly |
executed and delivered on the day and year first above written. |
PURCHASER: |
CYBD ACQUISITION II, INC. |
By:/s/ J.C. Chatpar |
Name: J.C. Chatpar |
Title: President |
CYBER DIGITAL, INC. |
By:/s/ J.C. Chatpar |
Name: J.C. Chatpar |
Title: President and CEO |
SELLER: |
eLEC COMMUNICATIONS CORP. |
By:/s/ Paul H. Riss |
Name: Paul H. Riss |
Title: CEO |