FIRST AMENDMENT TO NOTE AND STOCK PURCHASE AGREEMENT
Exhibit
10.3
FIRST
AMENDMENT TO NOTE AND STOCK PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO NOTE AND STOCK
PURCHASE AGREEMENT (this “Amendment”) is made as of September 14, 2009 by and
between ONSTREAM MEDIA CORPORATION, a Florida corporation (the “Company”) and
ROCKRIDGE CAPITAL HOLDINGS LLC, a Virginia limited liability company (the “Investor”).
Background
A. Investor
and Company are parties to that certain Note and Stock Purchase Agreement dated
April 14, 2009 (the “Purchase
Agreement”).
B. Company
has requested that Investor make certain modifications to the Purchase
Agreement, and Investor has agreed to Company’s requests, subject to the terms
and conditions of this Amendment.
In
consideration of the premises and the mutual covenants and conditions herein
contained, the parties hereby agree as follows:
1. Definitions. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them in
the Purchase Agreement.
2. Amendments. All
of the provisions of the Purchase Agreement shall remain in full force and
effect, except to the extent amended as follows:
(i) The
first WHEREAS clause is hereby deleted in its entirety and replaced with the
following:
“ WHEREAS, the Company desires to enter
into this Agreement with the Investor to sell and issue (i) a promissory Note of
the Company in the principal amount of up to $2,000,000.00 which Note shall be
in the form attached hereto as Exhibit A (as amended
and in effect from time to time, the “Note”), and (ii) up
to 2,200,000 restricted shares (the “Shares”) of Common
Stock, par value $.0001 per share (the “Common Stock”) of the
Company”;
(ii) All
references in Section 1b. to “$1,000,000” are hereby deleted in their entirety
and replaced with “$2,000,000”;
(iii) The
reference in Section 1b. to “$250,000” is hereby deleted and replaced with
“$1,250,000”; and
(iv) The
fourth and fifth sentences of Section 1b. are hereby deleted and replaced with
the following:
“As an origination fee for the Note,
the Investor shall have the option to require the Company to issue all or any
portion of the Shares upon not less than sixty-one (61) days prior written
notice to the Company. Upon receipt of such written notice, the
Company shall issue the Shares described in such notice to the Investor on the
date requested in such notice”. The issuance of 500,000 out of the
2,200,000 Shares is also subject to the further terms of such issuance included
in the Note”. The issuance of any Shares of the Company hereunder is
subject to compliance with the prior notification to NASDAQ via an LAS filing,
the required LAS waiting period, and the ultimate approval by NASDAQ of that LAS
filing.
3. Conditions
Precedent. The terms and conditions of this Amendment are made
contingent upon, and shall not become effective, unless and until:
(i) Investor
shall receive (a) this Amendment and (b) an Allonge to Convertible Promissory
Note, each in form and substance satisfactory to Investor and its counsel,
executed by Company;
(ii) Company
shall have executed that certain Marketplace365 End User Agreement by and
between the Company and Doctor’s Associates Inc. (“DAI”), in form and substance
satisfactory to DAI;
(iii) Company
shall have delivered to Investor (a) corporate resolutions authorizing the
transactions contemplated by this Amendment and (b) an opinion of its counsel
with respect to such transactions, each in form and substance satisfactory to
Investor and its counsel; and
(iv) Company
shall have delivered to Investor all such other documents as Investor or its
counsel reasonably require.
4. Miscellaneous
(a) Upon
the execution of this Amendment, the Purchase Agreement and the other
Transaction Documents are restated to the extent that this Amendment restates
them and are amended to the extent that this Amendment amends
them. Except as specifically amended by the terms of this Amendment,
all terms and conditions set forth in the Transaction Documents, together with
all schedules and exhibits attached thereto, shall remain in full force and
effect. This Amendment, to the extent that it is inconsistent with
the Transaction Documents, supersedes the Transaction Documents and any and all
prior written and oral amendments of the Transaction Documents.
(b)
This Agreement shall inure to the benefit of
and bind the parties hereto and their respective legal representatives, heirs,
administrators, executors, successors and assigns.
(c) This
Agreement shall be governed by and construed in accordance with the laws of the
State of Connecticut, but not its conflict of laws provisions.
- 2
-
(d) This
Agreement may be executed in any number of counterparts, each of which shall
constitute an original and all of which taken together shall constitute one
instrument.
(e) All
costs incurred by Investor in connection with this Agreement and the
transactions contemplated herein, including without limitation the reasonable
fees and expenses of Investor’s counsel shall be paid by Company.
[SIGNATURE
PAGE FOLLOWS]
- 3
-
IN WITNESS WHEREOF, the
parties hereto have executed this Amendment the date first written
above.
|
ONSTREAM
MEDIA CORPORATION
|
|
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
|
Title:
President and Chief Executive Officer
|
|
|
INVESTOR:
|
|
|
ROCKRIDGE
CAPITAL HOLDINGS, LLC
|
|
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
|
Title:
Managing
Director
|
|
Signature
Page to Rockridge/Onstream First Amendment