EXHIBIT 10.2
THIS SECOND AMENDING AGREEMENT made and dated for reference the 31st day of
January, 2000.
AMONG:
E-VIDEOTV, INC., a body corporate, incorporated under the laws of the
State of Delaware, having its registered office at 0000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000
(HEREINAFTER CALLED "E-VIDEOTV")
OF THE FIRST PART
AND:
EVIDEO USA, INC., a body corporate, incorporated under the laws of
Nevada, having its registered office at 000 Xxxx Xxxx Xxxxxx, Xxxxxx
Xxxx, Xxxxxx 00000
(HEREINAFTER CALLED "USA")
OF THE SECOND PART
AND:
EVIDEO INTERNATIONAL, INC., a body corporate, incorporated under the
laws of The Commonwealth of the Bahamas, having its registered office
at ABL Building, Bank Lane, Nassau, Bahamas
(HEREINAFTER CALLED "INTERNATIONAL")
OF THE THIRD PART
AND:
XXX X. XXXXXXX & ASSOCIATES LTD., a body corporate, incorporated under
the laws of the Province of British Columbia, having its head office
at 1750 - 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0
(HEREINAFTER CALLED "XXXXXXX")
OF THE FOURTH PART
AND:
XXX X. XXXXXXX, an individual, at 0000 - 0000 X. Xxxxxxxx Xxxxxx,
Xxxxxxxxx, X.X. X0X 0X0
(HEREINAFTER CALLED "XXX XXXXXXX")
OF THE FIFTH PART
WHEREAS:
A. Pursuant to an agreement among the parties hereto dated June 8, 1999
(hereinafter called the "Agreement"), E-VideoTV (formerly known as "Asia Pacific
Enterprises, Inc.") agreed to acquire all of the issued and outstanding shares
of USA from International on the terms set forth in the Agreement;
B. The closing pursuant to the Agreement occurred on June 23, 1999;
C. Pursuant to an amending agreement among the parties hereto dated
September 1, 1999 (hereinafter called the "Amending Agreement"), the parties
amended certain of the provisions of the Agreement on the terms and conditions
set forth therein;
D. The parties now wish to further amend certain of the provisions of
the Agreement, as amended by the Amending Agreement, on the terms and conditions
hereinafter set forth;
NOW THEREFORE THIS SECOND AMENDING AGREEMENT WITNESSETH that in consideration of
these presents and the sum of Ten Dollars ($10.00) now paid by each of the
parties to each of the other parties hereto, the receipt and sufficiency of
which is hereby acknowledged by each of the parties, and for other good and
valuable consideration, the receipt and sufficiency of which is also hereby
acknowledged by each of the parties, the parties hereby agree as follows:
1. Paragraph 1.01 of the Agreement is deleted in its entirety, and is replaced
with the following:
"1.01Subject to the terms and conditions hereof, International hereby
agrees to sell to E-VideoTV, and E-VideoTV hereby agrees to purchase
from International, one common share in the capital stock of USA,
representing all of the issued and outstanding shares of USA, with the
consideration to consist of the issuance of 6,623,016 common shares in
the capital stock of E-VideoTV, with all of these shares to be held in
escrow by an independent escrow agent, with these shares of E-VideoTV
to be dealt with on the following basis:
(a) 25% of these shares will be released to International from escrow
when all of the following business milestones have been met:
(i) the formal Long Form Agreement contemplated in paragraph 16
of the Macrovision Agreement has been entered into; and
(ii) an agreement has been entered into with a motion picture
studio for the distribution of movies by means of USA's
system;
(b) an additional 25% of these shares will be released to
International from escrow when each of the following conditions
have been met:
(i) E-VideoTV has successfully recruited a Chief Executive
Officer and such recruitment has been approved by its board
of directors;
(ii) a successful file server beta testing with video files has
been developed;
(iii)a distribution agreement with a cable company has been
entered into; and
(iv) a communication test between a cable company and a cable
customer has been successfully completed;
(c) the remaining 50% of these shares will be released to International
from escrow when E-VideoTV first generates gross annual revenues of
One Million Dollars ($1,000,000) on a consolidated basis; and
(d) any shares not released to International from escrow by June 23, 2004
will be surrendered to E-VideoTV for cancellation; PROVIDED THAT,
notwithstanding any of the provisions of this paragraph 1.01, all
shares not yet released to International from escrow pursuant to the
provisions of sub-paragraphs (a), (b) or (c) or not cancelled pursuant
to the provision of sub-paragraph (d) hereof shall be released from
escrow upon the occurrence of any of the following events:
(e) E-VideoTV successfully completing a public offering that raises in
excess of Ten Million Dollars ($10,000,000); or
(f) the completion of a successful takeover for a majority of the issued
and outstanding common shares of E-VideoTV that results in a majority
of the shares of E-VideoTV not held in escrow pursuant to the terms of
this Agreement having been tendered pursuant to the takeover bid; or
(g) E-VideoTV having a publicly quoted market price in excess of Ten
Dollars ($10.00) per common share for a period of in excess of twenty
consecutive trading days."
2. Paragraph 1.02 of the Agreement, as amended by paragraph 1 of the Amending
Agreement, is deleted in its entirety, the result being that no additional
shares of E-VideoTV will be issued to International, notwithstanding
E-VideoTV raising additional equity capital in the future.
3. Paragraph 1.03 of the Agreement, as amended by paragraph 2 of the Amending
Agreement, is deleted in its entirety and replaced with the following:
"1.03In order to secure E-VideoTV's performance in the raising of
additional equity capital, Xxxxxx Rollke, a director of E-VideoTV, has
agreed to lodge 345,000 common shares of E-VideoTV currently owned by
him with an independent escrow agent, which shares will be released to
Mr. Rollke from escrow or cancelled on the following basis:
(a) on May 30, 2000, that portion of the total shares held in escrow
that equals the portion that the equity funds raised by E-VideoTV
from January 1, 1999 to May 30, 2000 (excluding equity funds
raised solely through the efforts of Xxx X. Xxxxxxx) is of
$5,000,000; and
(b) any shares not entitled to be released from escrow as provided
for in sub-paragraph (a) of this paragraph 1.03 will be
surrendered to E-VideoTV for cancellation on May 31, 2000.
4. Paragraph 7.01 of the Agreement is deleted in its entirety, and is replaced
with the following:
"7.01The following will become or remain the directors and officers of each
of E-VideoTV and USA:
(a) Xxx Xxxxxxx will remain a director, the President and the Chief
Executive Officer until a new Chief Executive Officer is
appointed under subsection 1.01(b)(i) herein, at which time Xxx
Xxxxxxx will remain a director and the Chairman, at his
discretion;
(b) Xxxxxx Rollke will have the right to nominate one director, who,
if not already a director of E-VideoTV, will be appointed
director forthwith upon being nominated by Xxxxxx Rollke. His
representation in total shall be one directorship.
5. Paragraph 7.02 of the Agreement is deleted in its entirety.
6. Paragraph 7.05 of the Agreement is deleted in its entirety, and is replaced
with the following:
"7.05 E-VideoTV and USA each acknowledge and agree that:
(a) any expenditure by either in excess of Twenty-five Thousand
Dollars ($25,000) will require the prior approval of the board of
directors of E-VideoTV; and
(b) each will be required to present to its board of directors at
least 2 weeks prior to the start of any calendar quarter an
operating budget for the next calendar quarter, detailing
proposed expenditures on a monthly basis, with the operating
budget for USA to be subject to the approval of the boards of
directors of each of USA and E-VideoTV, and with the operating
budget for E-VideoTV to be subject to the approval of its board
of directors."
7. In all other respects the terms and conditions of the Agreement, as amended
by the Amending Agreement, shall remain in full force and effect.
8. The parties hereto agree that the terms and conditions of this Second
Amending Agreement shall supercede and replace any other agreement or
arrangements, whether oral or written, heretofore existing among the
parties in respect of the subject matter of this Second Amending Agreement.
9. This Second Amending Agreement and any certificate or other writing
delivered in connection herewith may be executed in any number of
counterparts and any party hereto may execute any counterpart, each of
which when executed and delivered will be deemed to be an original and all
of which counterparts of this Second Amending Agreement or such other
writing, as the case may be, taken together, will be deemed to be one and
the same instrument. The execution of this Second Amending Agreement or any
other writing by any party hereto will not become effective until all
counterparts hereof have been executed by all the parties hereto.
10. Each of the parties hereto will be entitled to rely upon delivery by
facsimile of executed copies of this Second Amending Agreement and any
certificates or other writings delivered in connection herewith, and such
facsimile copies will be legally effective to create a valid and binding
agreement among the parties in accordance with the terms and conditions of
this Second Amending Agreement.
11. Each of the parties hereto agrees to do and/or execute all such further and
other acts, deeds, things, devices, documents and assurances as may be
required in order to carry out the true intent and meaning of this Second
Amending Agreement.
12. This Second Amending Agreement shall endure to the benefit of and be
binding upon the parties hereto and each of their successors and permitted
assigns, as the case may be.
IN WITNESS WHEREOF this Second Amending Agreement has been executed as of the
day and year first above written.
SIGNED and DELIVERED by
E-VIDEOTV, INC.
in the presence of:
/s/ Xxxxxx Xxxxxxx
--------------------------------
Authorized Signatory
SIGNED and DELIVERED by
EVIDEO USA, INC.
in the presence of:
/s/ Xxxxxx Xxxxxxx
--------------------------------
Authorized Signatory
SIGNED and DELIVERED by
EVIDEO INTERNATIONAL, INC.
in the presence of:
/s/ Xxx X. Xxxxxxx
--------------------------------
Authorized Signatory
SIGNED and DELIVERED by
XXX X. XXXXXXX & ASSOCIATES LTD.
in the presence of:
/s/ Xxx X. Xxxxxxx
--------------------------------
Authorized Signatory
SIGNED AND DELIVERED BY )
XXX X. XXXXXXX )
IN THE PRESENCE OF: )
/S/ XXXXXX XXXXXXX ) /S/ XXX X. XXXXXXX
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SIGNATURE OF WITNESS ) XXX X. XXXXXXX
XXXXXX XXXXXXX )
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NAME OF WITNESS - PLEASE TYPE OR PRINT )
0000 XXXXXX XXXXX XX )
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ADDRESS OF WITNESS - PLEASE TYPE OR PRINT )
NORTH VANCOUVER BC )
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CHARTERED ACCOUNTANT )
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OCCUPATION OF WITNESS - PLEASE TYPE OR PRINT )
