FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT made as of February 13, 2006 Between Cancable Inc. Cancable Holding Corp. and Laurus Master Fund, Ltd.
FIRST
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
made
as
of February 13, 2006
Between
Cancable
Inc.
Cancable
Holding Corp.
and
Laurus
Master Fund, Ltd.
FIRST
AMENDMENT TO THE SECURITIES PURCHASE AGREEMENT
made as
of February 13,
2006
(this “First
Amendment”)
between Cancable Inc., an Ontario corporation (the “Company”),
Cancable Holding Corp., a Delaware corporation (“Cancable
Parent”)
and
Laurus Master Fund, Ltd., a Cayman Islands company (the “Purchaser”).
RECITALS
| A. |
The
Company, Cancable Parent and the Purchaser entered into a Securities
Purchase Agreement dated December 31, 2005 (the “2005
Securities Purchase Agreement”).
|
| B. |
Creative
Vistas, Inc., an Arizona corporation, and the parent company to the
Company and Cancable Parent, with Iview Digital Video Solutions Inc.
and
Iview Holding Corp., is now entering into a Securities Purchase Agreement
made as of February ·,
2006 with the Purchaser (the “2006
Securities Purchase Agreement”).
|
| C. |
It
is a condition of entering into the 2006 Securities Purchase Agreement
that the 2005 Securities Purchase Agreement is
amended.
|
NOW
THEREFORE
for good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
I
AMENDMENTS
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1.1
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Amendment
to Section 6 (Covenants of the Company) of the 2005 Securities Purchase
Agreement
|
Section
6
of the 2005 Securities Purchase Agreement is amended to insert the following
provision after Section 6.14:
“6.15 .
Reporting
Requirements.
The
Company will deliver, or cause to be delivered, to the Purchaser each of the
following, which shall be in form and detail acceptable to the
Purchaser:
| (a) |
As
soon as available, and in any event within ninety (90) days after
the end
of each fiscal year of the Company, each of the Company’s and each of its
Subsidiaries’ audited financial statements with a report of independent
certified public accountants of recognized standing selected by the
Company and acceptable to the Purchaser (the “Accountants”),
which annual financial statements shall be without qualification
and shall
include each of the Company’s and each of its Subsidiaries’ balance sheet
as at the end of such fiscal year and the related statements of each
of
the Company’s and each of its Subsidiaries’ income, retained earnings and
cash flows for the fiscal year then ended, prepared on a consolidating
and
consolidated basis to include the Company, each Subsidiary of the
Company
and each of their respective affiliates, all in reasonable detail
and
prepared in accordance with GAAP, together with (i) if and when available,
copies of any management letters prepared by the Accountants; and
(ii) a
certificate of the Company’s President, Chief Executive Officer or Chief
Financial Officer stating that such financial statements have been
prepared in accordance with GAAP and whether or not such officer
has
knowledge of the occurrence of any Event of Default (as defined in
the
Note) and, if so, stating in reasonable detail the facts with respect
thereto;
|
| (b) |
As
soon as available and in any event within forty five (45) days after
the
end of each fiscal quarter of the Company, an unaudited/internal
balance
sheet and statements of income, retained earnings and cash flows
of the
Company and each of its Subsidiaries as at the end of and for such
quarter
and for the year to date period then ended, prepared on a consolidating
and consolidated basis to include all the Company, each Subsidiary
of the
Company and each of their respective affiliates, in reasonable detail
and
stating in comparative form the figures for the corresponding date
and
periods in the previous year, all prepared in accordance with GAAP,
subject to year-end adjustments and accompanied by a certificate
of the
Company’s President, Chief Executive Officer or Chief Financial Officer,
stating (i) that such financial statements have been prepared in
accordance with GAAP, subject to year-end audit adjustments, and
(ii)
whether or not such officer has knowledge of the occurrence of any
Event
of Default (as defined in the Note) not theretofore reported and
remedied
and, if so, stating in reasonable detail the facts with respect thereto;
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1.2
|
Amendment
to Section 4.1 (Organization, Good Standing and Qualification) of
the 2005
Securities Purchase
Agreement
|
The
definition of “Related
Agreements”
in
Section 4.1 of the 2005 Securities Purchase Agreement is hereby deleted in
its
entirety and replaced with the following at the end of Section 4.1:
(i)
The
Master Security Agreement dated as of September 30, 2004 granted by Creative
Vistas, Inc., A.C. Technical Systems Ltd., A.C. Technical Acquisition Corp.
(now
Creative Vistas Acquisition Corp.) and Cancable Parent, Iview Digital Video
Solutions Inc., Cancable Inc., and Cancable, Inc. (pursuant to the Joinder
and
Confirmation of Security dated as of December 31, 2005 between Cancable Parent,
Iview Digital Video Solutions Inc., Cancable Inc., Cancable, Inc., Creative
Vistas, Inc., Creative Vistas Acquisition Corp., A.C. Technical Systems Ltd.
and
Xxxxx X. Xxxxxxx (the “2005
Joinder”)
in
favour of the Purchaser; (ii) the Subsidiary Guaranty dated as of September
30,
2004 granted by A.C. Technical Systems Ltd., A.C. Technical Acquisition Corp.
(now Creative Vistas Acquisition Corp.) and Cancable Parent, Iview Digital
Video
Solutions Inc., Cancable Inc. and Cancable, Inc. (pursuant to the 2005 Joinder)
in favour of the Purchaser; (iii) the Guaranty dated as of September 30, 2004
granted by Xxxxx X. Xxxxxxx in favour of the Purchaser; (iv) the Share Pledge
Agreement dated as of September 30, 2004 granted by A.C. Technical Systems
Ltd.,
A.C. Technical Acquisition Corp. (now Creative Vistas Acquisition Corp.) and
Cancable Parent, Iview Digital Video Solutions Inc., Cancable Inc., and
Cancable, Inc. (pursuant to the 2005 Joinder) in favour of the Purchaser; (v)
the Share Pledge Agreement dated as of September 30, 2004 granted by Creative
Vistas, Inc. and Cancable Parent, Iview Digital Video Solutions Inc., Cancable
Inc., and Cancable, Inc. (pursuant to the 2005 Joinder) in favour the Purchaser;
(vi) this Agreement; (vii) the Note and the Option; (viii) the Escrow Agreement,
(ix) the Guaranty dated as of December 31, 2005 granted by Creative Vistas,
Inc., Cancable Parent, Cancable, Inc., Creative Vistas Acquisition Corp., A.C.
Technical Systems Ltd. and Iview Digital Video Solutions Inc. in favour of
the
Parent; (x) the Master Security Agreement dated as of December 31, 2005 granted
by Creative Vistas, Inc., Iview Digital Video Solutions Inc., Cancable Inc.,
Cancable, Inc., Cancable Parent, A.C. Technical Systems Ltd. and Creative Vistas
Acquisition Corp.; (xi) the Pledge Agreement dated as of December 31, 2005
granted by Creative Vistas, Inc., Creative Vistas Acquisition Corp., Cancable
Inc. and Cancable Parent; (xii) the 2005 Joinder; (xiii) and all other
agreements related to this Agreement and the Note and referred to herein (the
preceding clauses (i) to (xiii), collectively, the “Related
Agreements”).
ARTICLE
II
CONDITIONS
PRECEDENT
2.1 Conditions
Precedent
This
First Amendment shall become effective as of the date hereof upon satisfaction
in full (in the sole opinion of the Purchaser) of the following condition:
(a)
the Purchaser shall have received this First Amendment duly executed and
delivered by the Company and Cancable Parent.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties True and Correct
After
giving effect to this First Amendment, each of the representations and
warranties of the Company and Cancable Parent contained in the 2005 Securities
Purchase Agreement and each of the other Related Agreements (as defined therein
and amended and restated herein) is true and correct on, and as of, the date
hereof as if made on such date (except to the extent that such representation
or
warranty expressly relates to an earlier date and except for changes therein
expressly permitted or expressly contemplated by the 2005 Securities Purchase
Agreement).
3.2 No
Default or Event of Default
After
giving effect to this First Amendment, no Event of Default (as defined in the
2005 Securities Purchase Agreement) shall have occurred and be
continuing.
ARTICLE
IV
MISCELLANEOUS
4.1 Consent
of the Purchaser
The
Purchaser consents to the amendments provided herein.
4.2 No
Other Amendments, Waivers or Consents
Except
as
expressly amended, waived or consented to herein, the 2005 Securities Purchase
Agreement shall be unmodified and shall continue to be in full force and effect
in accordance with its terms. Without limiting the foregoing, except as
expressly provided herein, this First Amendment shall not be deemed a waiver
of,
or consent to, or modification of, any term or condition of the 2005 Securities
Purchase Agreement by the Purchaser and shall not be deemed to prejudice any
right or rights which the Purchaser may now have or may have in the future
under
or in connection with the 2005 Securities Purchase Agreement.
4.3 Further
Assurances
Each
of
the parties hereto shall with reasonable diligence do all such things and
provide all such reasonable assurances as may be required to consummate the
amendments contemplated by this First Amendment and each of the parties hereto
shall provide such further documents or instruments required by the other party
as may be reasonably necessary or desirable to effect the purpose of this First
Amendment and carry out its provisions.
4.4 Time
Time
is
of the essence in the performance of the parties’ respective obligations in this
First Amendment.
4.5 Governing
Law
This
First Amendment is a contract made under and shall be governed by and construed
in accordance with the laws of the Province of Ontario and the federal laws
of
Canada applicable therein.
4.6 Successors
and Assigns
This
First Amendment shall enure to the benefit of and be binding upon the parties
hereto and their respective successors and any assigns, transferees and
endorsees of the Purchaser. Nothing in this First Amendment, express or implied,
shall give to any person, other than the parties hereto and their successors
hereunder, any benefit or any legal or equitable right, remedy or claim under
this First Amendment.
4.7 Counterparts
This
First Amendment may be executed by the parties hereto in counterparts and may
be
executed and delivered by facsimile and all such counterparts and facsimiles
shall together constitute on and the same agreement.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF,
the
parties hereto have executed this First Amendment as of the date first written
above.
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CANCABLE INC.
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By:
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/s/
HEUNG XXXX XXX
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Name:
Heung Xxxx Xxx
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Title:
Secretary
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CANCABLE
HOLDING
CORP.
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By:
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/s/
XXXXXXX XXXXX
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Name:
Xxxxxxx Xxxxx
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Title:
President
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The
following person is signatory to this First Amendment in its capacity as
Purchaser.
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LAURUS MASTER FUND, LTD
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By:
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/s/
XXXXXX GRIN
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Name:
Xxxxxx Grin
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Title:
Director
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