FOURTH AMENDMENT TO MEDIA AND MARKETING SERVICES AGREEMENT
FOURTH AMENDMENT TO MEDIA
AND MARKETING SERVICES AGREEMENT
This
FOURTH AMENDMENT TO MEDIA AND MARKETING SERVICES AGREEMENT (this “Fourth Amendment”) is
entered into on the 7th day of
December, 2010, to be effective as of the 3rd day of
December, 2010, by and between CyberDefender Corporation, a Delaware corporation
(“CyberDefender”), and
GR Match, LLC, a Delaware limited liability company (“GRM”). GRM
and CyberDefender may each be referred to herein as a “Party” and, collectively,
as the “Parties.”
RECITALS
WHEREAS,
GRM and CyberDefender Corporation, a California corporation (as predecessor in
interest to CyberDefender), entered into that certain Media and Marketing
Services Agreement, dated as of March 24, 2009, to be effective as of March 1,
2009, as amended by that certain First Amendment thereto, dated as of June 4,
2009, that certain Second Amendment thereto, dated as of October 26, 2009, and
that certain Third Amendment thereto, dated as of October 22, 2010, to be
effective October 15, 2010 (collectively, the “Agreement”);
and
WHEREAS,
the Parties desire to further amend the Agreement as set forth
herein.
NOW
THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agrees as follows:
1. Amendment to Section 2.2 of
the Agreement. Section 2.2 of the Agreement is hereby amended
and restated in its entirety as follows:
2.2 Reimbursement of Media
Costs. GRM shall deliver to CyberDefender weekly or monthly
invoices, at GRM's sole discretion, which set forth in reasonable detail (i) the
amount of all actual out of-pocket Media Placement Costs incurred by GRM in
connection with providing the GRM Services during such week or month, as the
case may be (not to exceed the amount of the Media Placement Costs set forth in
the applicable Monthly Media Budget without CyberDefender's prior written
consent) and (ii) an amount equal to two and one half percent (2.5%) (the “Overhead Expense
Reimbursement Percentage”) of such Media Placement Costs, which
represents CyberDefender's allocable share of GRM's overhead expenses incurred
in connection with providing the GRM Services (collectively, the “Reimbursement
Amount”). For any invoice delivered by GRM to CyberDefender
pursuant to this Section
2.2 prior to the later of (i) CyberDefender's payment in full of all
amounts outstanding under the Revolving Credit Note (as defined in that certain
Revolving Credit Loan Agreement, dated as of even date herewith, by and between
CyberDefender and GRM (the “Revolving Credit Loan
Agreement”)) or (ii) the expiration or earlier termination of the
Revolving Credit Facility (as defined in the Revolving Credit Loan Agreement),
CyberDefender shall pay the entire portion of the applicable Reimbursement
Amount that is not treated as an Advance (as defined in the Revolving Credit
Loan Agreement) under the Revolving Credit Loan Agreement to GRM not later than
fifteen (15) days after its receipt of the applicable invoice. For
any invoice delivered by GRM to CyberDefender pursuant to this Section 2.2 following the
later of (i) CyberDefender's payment in full of all amounts outstanding under
the Revolving Credit Note or (ii) the expiration or earlier termination of the
Revolving Credit Facility, CyberDefender shall pay the applicable Reimbursement
Amount to GRM not later than forty five (45) days after its receipt of the
applicable invoice.
2. Amendment to Section 5.1 of
the Agreement. Section 5.1 of the Agreement is hereby amended
and restated in its entirety as follows:
5.1 Term. Subject
to any termination rights set forth herein, the term (the “Term”) of this Agreement shall
commence upon the Effective Date and continue until December 31, 2013 unless
earlier terminated in accordance with the provisions of this Agreement (the
“Termination
Date”).
3. Amendment to Section
5.2(iii) of the Agreement. Section 5.2(iii) of the Agreement
is hereby amended and restated in its entirety as follows:
(iii) By
GRM for any reason by giving CyberDefender written notice of the termination at
least thirty (30) days prior to the effective date of termination.
4. Conflict; Full Force and
Effect. In the event of any conflict between this Fourth Amendment and the
Agreement, this Fourth
Amendment shall control. The Parties acknowledge and agree
that, except as expressly provided herein, the provisions of the Agreement shall
remain unmodified and in full force and effect.
5. Successors
and Assigns. This Fourth Amendment is
and shall be binding upon each of the Parties and their respective successors
and assigns.
6. Recitals. The recitals to this Fourth
Amendment are hereby incorporated by reference herein.
7. Governing
Law. This Fourth
Amendment shall be governed by the laws of the State of California, without regard to its principles of
conflict of laws.
8. Entire
Agreement. This
Fourth Amendment and the Agreement contain the complete understanding and
agreement of the Parties relating to the subject matter hereof and thereof and
supersede any prior understanding or agreement related thereto, whether written
or oral.
9. Counterparts. This Fourth Amendment may
be executed in multiple counterparts, each of which will be deemed an original,
but together they will constitute one and the same
instrument.
IN
WITNESS WHEREOF, this Fourth Amendment has been duly executed by the Parties as
of the date first above written.
| GR Match, LLC, | |||
| a Delaware limited liability company | |||
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By:
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| Name: | |||
| Title: | |||
| CyberDefender Corporation, | |||
| a Delaware corporation | |||
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By:
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| Name: Xxxx Xxxxxxxx | |||
| Title: Chief Executive Officer | |||
