Exhibit cc
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AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
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This AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this "Amendment") is
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made and entered into as of February 27, 2007 by and among eLEC Communications
Corp., a New York corporation having an address at 00 Xxxxx Xxxxxxxx Xxxxx 000
Xxxxx Xxxxxx, XX 00000 ("Seller"), CYBD Acquisition, Inc., a New York
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corporation and wholly-owned subsidiary of Cyber Digital (as defined below)
having an address at 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Acquisition
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Sub"), and Cyber Digital, Inc., a New York corporation having an address at 000
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Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("Cyber Digital" and, together with
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Acquisition Sub, collectively, "Purchaser"), to amend that certain Stock
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Purchase Agreement (the "Agreement"), dated as of December 14, 2006, by and
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among Seller, Acquisition Sub and Cyber Digital. Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Agreement.
RECITALS
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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".
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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 April 12, 2007 (the "Outside Date"), if the Closing shall not
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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
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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
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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
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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
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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
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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
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1.6 Construction. Except as expressly set forth herein, all of the
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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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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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, INC.
By: /s/ X.X. Xxxxxxx
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Name: X.X Chapter
Title: President
CYBER DIGITAL, INC.
By: /s/ X.X. Xxxxxxx
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Name: X.X Chapter
Title: President
SELLER:
eLEC COMMUNICATIONS CORP.
By: /s/ Xxxx X Xxxx
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Name: Xxxx X. Xxxx
Title: CEO
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO NRTC STOCK PURCHASE AGREEMENT]
