AMENDMENT NO. 4 TO SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 4
TO
AMENDMENT NO. 4 to the SERIES B
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT, dated July 29, 2010 (“Amendment”), among
Echo Metrix, Inc., a Delaware corporation (the “Company”) and Rock
Island Capital, LLC, and or assigns, a Florida limited liability company (“Rock Island” or the
“Buyer”).
BACKGROUND
Pursuant to that certain Series B
Convertible Preferred Stock Purchase Agreement, dated July 29, 2009, and entered
into by and among the Company and Rock Island, as amended by that certain
Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇ and Amendment No. 3 to the Series B Convertible
Preferred Stock Purchase Agreement, dated September 4, 2009, March 4, 2010 and
May 28, 2010, respectively, in addition to any and all other addenda
thereto (collectively the “Agreement”), the
Company has agreed to sell to Rock Island or its designees, and Rock Island has
agreed to purchase from the Company, an aggregate of 550,055 shares of the
Company’s Series B Preferred Stock for an aggregate price of
$5,000,000. The parties now desire to enter into this Amendment to
modify the terms of the Agreement as more specifically set forth
herein.
All capitalized terms used but not
defined herein shall have the meanings assigned them in the
Agreement.
NOW, THEREFORE, in consideration of the
mutual promises of the parties and the terms and conditions hereof, the parties
hereby agree to amend the Agreement as follows:
1. Amendment
to Section 8.1. Section 8.1 of the Agreement shall be deleted in its entirety
and, in lieu thereof, the following new Section 8.1 is inserted:
8.1 By
Buyer. In the event that the Buyer shall fail to timely
pay any tranche payment and does not notify the Company in writing at least five
(5) days prior to such payment due date (upon which notice Rock Island shall be
granted a 7-day extension), Company may, from and after the expiration of any
and all applicable cure periods, terminate the Agreement and the same shall
become null and void, provided however that Company shall, in any event, retain
the portion of the Purchase Price paid and shall immediately issue Buyer the
Purchase Shares in a prorata amount equal to the value of the amount
paid. If Buyer shall fail to timely pay any tranche payment, the
Company shall have no right to pursue any other remedy against Buyer except as
set forth in this Section 8.1.
2. Amendment to Paragraph 12 of
Amendment No. 2 to the Series B Convertible Preferred Stock Purchase Agreement
dated March 4, 2010. Paragraph 12 (titled “Termination”) of
Amendment No. 2 to the Series B Convertible Preferred Stock Purchase Agreement
dated March 4, 2010 shall be deleted in its entirety.
3. No
Other Changes. All other terms and conditions of the Agreement shall
remain in full force and effect as provided in the Agreement.
4. Execution
in Counterparts. This Amendment may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
5. Applicable
Law. This Amendment shall be governed by and construed in accordance
with the laws of the State of Florida without giving effect to the principles of
conflicts of laws thereof.
6. Headings. The
headings contained in this Amendment are for convenience of reference only and
shall not affect the construction of this Amendment.
7. Consent. This
Amendment has been negotiated and executed with the mutual consent of both
Company and Rock Island.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have
duly executed this Amendment as of the date set forth above.
| ECHO METRIX, INC. | |
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By:
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
Chief Executive Officer
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ROCK
ISLAND CAPITAL, LLC
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| By: |
/s/▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Name:▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
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Title:
Managing Partner
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