FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.2
FIRST
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This
FIRST
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
(the
“Amendment”),
effective as of November __, 2007 (the “Effective
Date”),
is by
and among Customer Acquisition Network Holdings, Inc., a Delaware corporation
(the “Company”),
Longview Marquis Master Fund, L.P., a British Virgin Islands limited partnership
and Alpha Capital Anstalt, a Liechtenstein corporation (each, a “Buyer”
and,
collectively, the “Buyers”).
Capitalized terms used in this Amendment but not defined herein have the
meaning
set forth in the SPA (as defined below).
WHEREAS,
the
Company and the Buyers entered into that certain Securities Purchase Agreement
(the “SPA”),
dated
as of November 15, 2007, in which the Company has agreed to sell the Notes
to
each of the Buyers;
WHEREAS,
pursuant to the terms of this Amendment, the Company and the Buyers desire
to
amend the SPA provisions related to the Company’s deposit accounts;
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants contained herein and
in
the SPA, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the parties hereto,
intending to be legally bound, hereby agrees as follows:
1. Amendments
to SPA.
(a) Section
4(h) of the SPA is hereby amended to add the following at the end thereof
(immediately prior to the period):
“and
for
all costs, fees and expenses that the Collateral Agent or any Buyer pays
to
Wachovia Bank, National Association (‘Wachovia’) pursuant to that certain
Account Control Agreement to be entered into by Customer Acquisition Network,
Inc., the Collateral Agent and Wachovia, as depositary bank”
(b) Section
4(v) of the SPA is hereby amended and restated to read in its entirety as
follows:
“v. The
Company shall transfer all funds on deposit in each Excluded Account on a
daily
basis to one or more deposit account(s) that are subject to an Account Control
Agreement to which the Collateral Agent is a party and which is in form and
substance satisfactory to the Collateral Agent; provided, however, that the
Company may hold (i) not more than $194,000 in the account described in clause
(i) of the definition of the term Excluded Account at any time during the
period
commencing on the Closing Date and ending on the forty-fifth (45th) day after
the Closing Date, (ii) not more than $303,326 in the account described in
clause
(ii) of the definition of the term Excluded Account at any time during the
period commencing on the Closing Date and ending on the forty-fifth (45th)
day
after the Closing Date, and (iii) not more than $100 in the account described
in
clause (iii) of the definition of Excluded Account (the “Savings Account”) at
any time during the period commencing on the Closing Date and ending on the
tenth (10th) day after the Closing Date. The Company shall deliver, or cause
to
be delivered, to the Collateral Agent on or prior to the forty-fifth (45th)
day
after the Closing Date evidence of the closing of the Excluded Accounts
described in clauses (i) and (ii) above, in form and substance satisfactory
to
the Collateral Agent, and transfer all funds on deposit in such Excluded
Accounts to one or more deposit account(s) that are subject to an Account
Control Agreement to which the Collateral Agent is a party and which is in
form
and substance satisfactory to the Collateral Agent. The Company shall deliver,
or cause to be delivered, to the Collateral Agent (as defined in the Security
Agreement) on or prior to the tenth (10th) day after the Closing Date evidence
of the closing of the Savings Account, in form and substance satisfactory
to the
Collateral Agent, and transfer all funds on deposit in the Savings Account
to
one or more deposit account(s) that are subject to an Account Control Agreement
to which the Collateral Agent is a party and which is in form and substance
satisfactory to the Collateral Agent. Following the closing the Excluded
Accounts, no funds of the Company or any of its Subsidiaries shall be held
in
any accounts other than accounts that are not Excluded Accounts and that
are
covered by Account Control Agreements”
(c) Section
4(w) of the SPA is hereby amended and restated to read in its entirety as
follows:
“w. The
Company shall not direct any customer, client or remitter of funds to the
Company to remit payments to any Excluded Account after the Closing
Date.”
(d) Section
4(x) of the SPA is hereby amended and restated to read in its entirety as
follows:
“x. The
Company shall irrevocably direct, and use its reasonable best efforts to
cause,
every customer, client or remitter of the Company or any of the Subsidiaries
as
of the Closing Date to thereafter pay all amounts payable by such customer,
client or remitter to a deposit account of the Company or such Subsidiary
which
is not an Excluded Account and shall require that every Person that becomes
a
customer, client or remitter of the Company or any of the Subsidiaries after
the
Closing Date to pay, at all times, all amounts payable by such customer,
client
or remitter of the Company or such Subsidiary to a deposit account of the
Company or such Subsidiary which is not an Excluded Account.”
(e) Section
8(o) of the SPA is hereby amended and restated to read in its entirety as
follows:
“o. The
Company shall have delivered, or have caused to be delivered, to the Collateral
Agent Account Control Agreements with respect to all deposit accounts (other
than the Excluded Accounts) of the Company and its Active Subsidiaries, executed
by the Company and/or its Subsidiaries, as applicable, and the applicable
financial institutions.”
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(f) Section
8(p) of the SPA is hereby amended and restated to read in its entirety as
follows:
“p. The
Company shall have transferred all funds on deposit in the Excluded Accounts
to
one or more deposit account(s) that are subject to an Account Control Agreement;
provided,
however,
that,
on the Closing Date, the Company may hold (i) not more than $194,000 in the
account described in clause (i) of the definition of the term Excluded Account,
(ii) not more than $303,326 in the account described in clause (ii) of the
definition of the term Excluded Account, and (iii) not more than $100 in
the
Savings Account.”
(g) Section
8(q) of the SPA is hereby deleted in its entirety.
(h) The
definition of “Excluded Account” in the Appendix to the SPA is hereby amended
and restated to read in its entirety as follows:
“’Excluded
Accounts’ means (i) account number 009484493016 in the name of Desktop
Interactive, Inc. maintained at Bank of America, N.A., (ii) account number
229009782401 in the name of Desktop Acquisition Sub, Inc. maintained at Bank
of
America, N.A., and (iii) account number 004433333900 in the name of Desktop
Acquisition Sub, Inc. maintained at Bank of America, N.A.”
2. Ratification
and Confirmation of SPA.
The
Company hereby adopts, ratifies and confirms the SPA, as amended hereby,
and
acknowledges and agrees that the SPA, as amended hereby, is and remains in
full
force and effect. The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Buyer
under
the SPA or the other Transaction Documents, nor constitute an amendment or
waiver of any other provision of the Transaction Documents. All references
to
the SPA (including any term used to mean the SPA) in any of the Transaction
Documents or in any other document, instrument, agreement or writing shall
hereafter be deemed to refer to the SPA as modified by this
Amendment.
3. Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Amendment shall be governed by the internal laws of the State of
New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State
of
New York.
4. Entire
Agreement.
The
SPA, as amended by this Amendment, and the other Transaction Documents supersede
all other prior oral or written agreements between each Buyer, the Company,
their affiliates and persons acting on their behalf with respect to the matters
discussed herein.
5. Section
Headings.
The
section headings herein are for convenience of reference only, and shall
not
affect in any way the interpretation of any of the provisions
hereof.
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6. Counterparts.
This
Amendment may be executed and delivered in one or more counterparts, and
by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement, and shall become effective when
counterparts have been signed by each party hereto and delivered to the other
parties hereto, it being understood that all parties need not sign the same
counterpart. In the event that any signature to this Amendment is delivered
by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing
(or
on whose behalf such signature is executed) with the same force and effect
as if
such facsimile or “.pdf” signature page were an original thereof. No party
hereto shall raise the use of a facsimile machine or e-mail delivery of a
“.pdf”
format data file to deliver a signature to this Amendment or the fact that
such
signature was transmitted or communicated through the use of a facsimile
machine
or e-mail delivery of a “.pdf” format data file as a defense to the formation or
enforceability of a contract, and each party hereto forever waives any such
defense.
7. Successors.
This
Amendment shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns, including any purchasers of the
Securities.
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IN
WITNESS WHEREOF,
the
Company and the Buyers have executed this Amendment as of the Effective
Date.
COMPANY: | ||
CUSTOMER ACQUISITION NETWORK HOLDINGS, INC. | ||
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By: | /s/ Xxxxx Xxxxxxxx | |
Name: |
Xxxxx Xxxxxxxx |
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Title: |
CFO |
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BUYERS: | ||
LONGVIEW
MARQUIS MASTER FUND, L.P.,
a
British Virgin Islands limited partnership
By: Viking
Asset Management, LLC
Its: Investment
Advisor
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By: |
/s/
S. Xxxxxxx Xxxxxxx
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Name: |
S. Xxxxxxx Xxxxxxx |
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Title: |
CFO |
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ALPHA CAPITAL ANSTALT, a Liechtenstein corporation | ||
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By: | /s/ Xxxxxx Xxxxxxxx | |
Name: |
Xxxxxx Xxxxxxxx |
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Title: | Director | |