AMENDMENT AND WAIVER
EXHIBIT
10.11
This
Amendment and Waiver (this “Amendment”),
dated
as of December 31, 2005, is entered into by and between CREATIVE VISTAS, INC.,
an Arizona corporation (the "Company"), and
LAURUS MASTER FUND, LTD., a Cayman Islands company ("Laurus"),
for
the purpose of amending the terms of that certain Registration Rights Agreement
by and between the Company and Laurus, dated as of September 30, 2004 (as
amended, modified or supplemented from time to time, the “Registration
Rights Agreement”).
Capitalized terms used herein without definition shall have the meanings
ascribed to such terms in that certain Securities Purchase Agreement by and
between the Company and Laurus, dated as of September 30, 2004 (as amended,
modified and/or supplemented from time to time, the “Securities
Purchase Agreement”).
WHEREAS,
the Registration Statement (as defined in the Registration Right Agreement)
has
not been declared effective by the Commission as required pursuant to Section
2(b)(ii) of the Registration Rights Agreement and as a result the Company owes
Laurus certain liquidated damages (the “Liquidated
Damages”)
as
determined in accordance with Section 2(b) of the Registration Rights Agreement;
and
WHEREAS,
the Company has not yet paid the Liquidated Damages; and
WHEREAS,
Laurus has agreed to forgive the payment of the Liquidated Damages;
and
WHEREAS,
the Company and Laurus have agreed to make certain changes to the Registration
Rights Agreement as set forth herein;
NOW,
THEREFORE, in consideration of the above, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto agree as follows:
1.
Laurus
hereby waives any Liquidated Damages due and payable to Laurus by the Company
up
to and including the date hereof.
2. Section
1
of the Registration Rights Agreement is hereby by amended by deleting the
definition of “Effectiveness Date” in its entirety and inserting the following
new definition in lieu thereof:
"Effectiveness
Date"
means
(i) with respect to the initial Registration Statement required to be filed
hereunder, a date no later than March 31, 2006 and (ii) with respect to each
additional Registration Statement required to be filed hereunder, unless
otherwise agreed to by the Company and Laurus, a date no later than forty five
(45) days following the applicable Filing Date.
3. Each
amendment and waiver set forth herein shall be effective as of the date first
above written (the “Amendment
Effective Date”)
on the
date when each of the Company and Laurus shall have executed and the Company
shall have delivered to Laurus its respective counterpart to this
Amendment.
4. Except
as
specifically set forth in this Amendment, there are no other amendments,
modifications or waivers to the Registration Rights Agreement, the Securities
Purchase Agreement or any Related Agreement, and all of the other forms, terms
and provisions of the Registration Rights Agreement, the Securities Purchase
Agreement or any Related Agreement remain in full force and effect.
5. The
Company hereby represents and warrants to Laurus that (i) no Event of Default
(as defined in each of the Note and that certain Security Agreement, dated
as of
September 30, 2004, by and among the Company, certain subsidiaries of the
Company and Laurus (as amended, modified or supplemented from time to time,
the
“Security Agreement”) exists on the date hereof, after giving effect to this
Amendment, (ii) on the date hereof, after giving effect to this Amendment,
all
representations, warranties and covenants made by the Company in connection
with
the Registration Rights Agreement, the Securities Purchase Agreement, any
Related Agreement, the Security Agreement and any Ancillary Agreement referred
to in the Security Agreement are true, correct and complete and (iii) on the
date hereof, after giving effect to this Amendment, all of the Company’s and its
Subsidiaries’ covenant requirements set forth in each of the Registration Rights
Agreement, the Securities Purchase Agreement, any Related Agreement, the
Security Agreement and any Ancillary Agreement referred to in the Security
Agreement have been met.
6. From
and
after the Amendment Effective Date, all references in the Registration Rights
Agreement, the Securities Purchase Agreement, any Related Agreement, the
Security Agreement and any Ancillary Agreement to the Registration Rights
Agreement shall be deemed to be references to the Registration Rights Agreement
as modified hereby.
7. This
Amendment shall be binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to the benefit of and be
enforceable by each of the parties hereto and their respective successors and
permitted assigns. THIS
AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY
THE
LAW OF THE STATE OF NEW YORK.
This
Amendment may be executed in any number of counterparts, each of which shall
be
an original, but all of which shall constitute one instrument.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF,
each of
the Company and Laurus has caused this Amendment to be signed in its name
effective as of the date first above written.
CREATIVE
VISTAS, INC.
By:
/s/
Heung
Xxxx Xxx
Name:
Heung Xxxx Xxx
Title:
Secretary
LAURUS
MASTER FUND, LTD.
By:
/s/
Xxxxx
Grin
Name:
Xxxxx Grin
Title:
Director
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