EX-10.1 2 c42022_ex10-1.txt CONSENT The undersigned, being all of the parties to that certain Purchase Agreement (the "AGREEMENT"), dated as of January 13, 2006 (the "EFFECTIVE DATE"), and certain other papers, agreements, documents, instruments and certificates necessary to carry out the purposes thereof (collectively referred to as the "PURCHASE DOCUMENTS"), do hereby consent to the following: WHEREAS, pursuant to Section 2(b) of the Agreement, Utix Group, Inc. (the "COMPANY") granted Special Situations Fund III, L.P. ("SSF"), and certain other investors affiliated with SSF (the "SSF INVESTORS"), the right, allocable among the SSF Investors as they may determine in their sole discretion (the "SSF OPTION"), exercisable at any time, and from time to time, in whole or in part, on or prior to 5:00 p.m., New York Time, on the first anniversary of the closing date (the "CLOSING DATE") of the private offering contemplated thereby (the "OFFERING"), to acquire additional shares of Series A Preferred Stock and Warrants of the Company (the "SECURITIES"), on the same terms and conditions as those purchased by the SSF Investors, and certain other investors (collectively, the "INVESTORS") on the Closing Date; and WHEREAS, pursuant to Section 7.9(d) of the Agreement, the Company was required to mail an Information Statement to the stockholders of the Company, no later than February 20, 2006 (the "MAILING DATE"); and WHEREAS, pursuant to Section 9.6 of the Agreement, the observance of any term of the Agreement may be waived (either generally, or in a particular instance, and either retroactively or prospectively), by written consent of the Company and the Investors, and such waiver shall be binding upon each holder of any Securities purchased under the Agreement and the Company. NOW, THEREFORE, the Company and the Investors hereby consent to the following: 1. The SSF Option is hereby waived generally, permanently and retroactively to the Effective Date; and 2. The Mailing Date is hereby extended to March 17, 2006 (the date on which the mailing to the Company's stockholders was actually completed). Except as specifically set forth herein, the Purchase Documents shall remain in full force and effect, and the terms and conditions contained therein are hereby ratified and confirmed. Page 1 of 3 This consent may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same instrument. Dated: March 30th, 2006 THE COMPANY: UTIX GROUP, INC. By: /s/ ANTHONY ROTH ------------------------------------ Name: Anthony Roth Title: President and Chief Executive Officer THE INVESTORS: SPECIAL SITUATIONS FUND III, QP, L.P. By: /s/ AUSTIN W. MARXE ------------------------------------ Name: Austin W. Marxe Title: SPECIAL SITUATIONS FUND III, L.P. By: /s/ AUSTIN W. MARXE ------------------------------------ Name: Austin W. Marxe Title: SPECIAL SITUATIONS CAYMAN FUND, L.P. By: /s/ AUSTIN W. MARXE ------------------------------------ Name: Austin W. Marxe Title: General Partner SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P. By: /s/ AUSTIN W. MARXE ------------------------------------ Name: Austin W. Marxe Title: Page 2 of 3 PALISADES MASTER FUND, L.P. By: ANDREW RECKLES ------------------------------------ Name: Andrew Reckles Title: General Partner LITTLE WING L.P. By: /s/ PARKER QUILLEN ------------------------------------ Name: Parker Quillen Title: President of Quilcap, Quilcap as General Partner TRADE WINDS LTD. By: /s/ PARKER QUILLEN ------------------------------------ Name: Parker Quillen Title: President of Quilcap International Corp., As Investment Manager SCG CAPITAL, LLC By: /S/ STEVEN GUDULD ------------------------------------ Name: Steven Guduld Title: President /s/ GARY PALMER --------------------------------------- Gary Palmer /s/ RICHARD SHANLEY --------------------------------------- Richard Shanley Page 3 of 3