Unassociated Document


    MAY
      2008 AMENDMENT AGREEMENT

     

    THIS
      MAY
      2008 AMENDMENT AGREEMENT (this “Agreement”)
      is
      made as of May 30, 2008, among Customer Acquisition Network Holdings, Inc.,
      a
      Delaware corporation (the “Company”),
      the
      Subsidiaries (as defined in the Buyer Note (as defined below)), and Longview
      Marquis Master Fund, L.P., a British Virgin Islands limited partnership
      (“Buyer”).

     

    WITNESSETH:

     

    WHEREAS,
      the Company, Buyer and Alpha Capital Anstalt, a Lichtenstein corporation
      (“Alpha”
and,
      together with Buyer, the “Original
      Buyers”),
      entered into that certain Securities Purchase Agreement, dated as of November
      15, 2007 (as amended, restated, supplemented or otherwise modified and in effect
      from time to time, the “Purchase
      Agreement”),
      pursuant to which the Company issued to the Original Buyers senior secured
      notes
      in an aggregate original principal amount of $5,000,000 (such notes, together
      with any promissory notes or other securities issued in exchange or substitution
      therefor or replacement thereof, and as any of the same may be amended,
      restated, supplemented or otherwise modified and in effect from time to time,
      each a “Note”
and,
      collectively, the “Notes”);

     

    WHEREAS,
      on the date hereof, Note No. VAM-001 issued to Buyer in the principal amount
      of
      $4,388,889.00 remains outstanding (the “Buyer
      Note”);
      and

     

    WHEREAS,
      the Company and Buyer desire to amend the terms of the Buyer Note as provided
      herein.

     

    NOW,
      THEREFORE, in consideration of the agreements, provisions and covenants
      contained herein and for other good and valuable consideration, the receipt
      and
      sufficiency of which are hereby acknowledged, each of the undersigned agrees
      as
      follows:

     

    1. Amendment
      of the Buyer Note.

     

    a. Buyer
      hereby agrees with the Company that, subject to, and effective upon, the receipt
      by Buyer of cash in the amount of $50,000 (the “Cash
      Amount”),
      by
      wire transfer of immediately available funds in accordance with the instructions
      set forth on Exhibit A
      hereto,
      from the Company by no later than 5:00 p.m. New York time, on June 2, 2008
      (such
      time and date, the “Payment
      Deadline”),
      the
      definition of “Maturity
      Date”
set
      forth in the Appendix to the Buyer Note shall be amended to read in its entirety
      as follows:

     

    “Maturity
      Date”
means
      June 13, 2008.”

     

    b. In
      the
      event that Buyer does not receive the Cash Amount by the Payment Deadline,
      this
      Agreement shall be null and void and of no further force and effect, and the
      Buyer Note shall not be amended in the manner set forth in this Section 1
      (i.e., the definition of “Maturity
      Date”
in
      the
      Buyer Note shall remain as originally set forth therein).

     

    2. Representations
      and Warranties of the Company.
      The
      Company represents and warrants to Buyer that:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    a. Authorization;
      Enforcement; Validity.
      Each of
      the Company and the Subsidiaries has the requisite corporate power and authority
      to enter into and perform its obligations under this Agreement and the Buyer
      Note (as amended hereby). The execution and delivery of this Agreement by the
      Company and the Subsidiaries and the consummation of the transactions
      contemplated hereby and thereby and by the Buyer Note (as amended hereby) have
      been duly authorized by the respective boards of directors of the Company and
      the Subsidiaries, and no further consent or authorization is required by the
      Company, the Subsidiaries or their respective boards of directors or
      shareholders. This Agreement has been duly executed and delivered by the Company
      and each of the Subsidiaries, and each of this Agreement and the Buyer Note
      (as
      amended hereby) constitutes a valid and binding obligation of each of the
      Company and the Subsidiaries (as applicable), enforceable against each of the
      Company and the Subsidiaries (as applicable) in accordance with its terms,
      except as such enforceability may be limited by general principles of equity
      or
      applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
      or
      similar laws relating to, or affecting generally, the enforcement of applicable
      creditors’ rights and remedies.

     

    b. Issuance
      of Securities.
      The
      amendment of the Buyer Note is exempt from registration under the Securities
      Act
      of 1933, as amended, and applicable state securities laws, based upon the
      representation made by Buyer herein that Buyer is an “accredited
      investor.”

     

    c. No
      Conflicts.
      The
      execution and delivery of this Agreement by each of the Company and the
      Subsidiaries, the performance by each of the Company and the Subsidiaries (as
      applicable) of their respective obligations hereunder and under the Buyer Note
      (as amended hereby) and the consummation by each of the Company and the
      Subsidiaries (as applicable) of the transactions contemplated hereby and by
      the
      Buyer Note (as amended hereby) will not (i) result in a violation of the
      certificate of incorporation or the bylaws of the Company or the organizational
      documents of any Subsidiary; (ii) conflict with, or constitute a breach or
      default (or an event which, with the giving of notice or lapse of time or both,
      constitutes or would constitute a breach or default) under, or give to others
      any right of termination, amendment, acceleration or cancellation of, or other
      remedy with respect to, any agreement, indenture or instrument to which the
      Company or any of the Subsidiaries is a party; or (iii) result in a violation
      of
      any law, rule, regulation, order, judgment or decree (including federal and
      state securities laws and regulations) applicable to the Company or any of
      the
      Subsidiaries or by which any property or asset of the Company or any of the
      Subsidiaries is bound or affected. Neither the Company nor any of the
      Subsidiaries is required to obtain any consent, authorization or order of or,
      except as required by Section 5 below, make any filing or registration with,
      any
      court or governmental agency or any regulatory or self-regulatory agency in
      order for it to execute, deliver or perform any of its obligations under, or
      contemplated by, this Agreement or the Buyer Note (as amended
      hereby).

     

    d. Outstanding
      Notes.
      As of
      the date hereof, the Buyer Note is the only Note outstanding.

     

    3. Representation
      and Warranties of Buyer.
      Buyer
      represents and warrants to the Company that (a) Buyer is a validly existing
      limited partnership and has the requisite limited partnership power and
      authority to enter into and perform its obligations under this Agreement, (b)
      this Agreement has been duly and validly authorized, executed and delivered
      on
      behalf of Buyer and is a valid and binding agreement of Buyer, enforceable
      against Buyer in accordance with its terms, and (c) Buyer is an “accredited
      investor” as that term is defined in Rule 501(a) of Regulation D (as defined in
      the Purchase Agreement).

     

    
      
        
        

      

      
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    4. Acknowledgment
      of the Company and the Subsidiaries.
      The
      Company and each of the Subsidiaries hereby irrevocably and unconditionally
      acknowledge, affirm and covenant to Buyer that:

     

    a. Buyer
      is
      not in default under any of the Transaction Documents and has not otherwise
      breached any obligations to the Company or any of the Subsidiaries;
      and

     

    b. there
      are
      no offsets, counterclaims or defenses to the Liabilities (as defined in the
      Security Agreement (as defined in the Purchase Agreement)) or Obligations (as
      defined in the Guaranty (as defined in the Purchase Agreement)), including
      the
      liabilities and obligations of the Company under the Buyer Note (as amended
      hereby), or to the rights, remedies or powers of Buyer in respect of any of
      the
      Liabilities or Obligations or any of the Transaction Documents, and the Company
      and each of the Subsidiaries agree not to interpose (and each does hereby waive
      and release) any such defense, set-off or counterclaim in any action brought
      by
      Buyer with respect thereto.

     

    5. Covenants. Prior
      to
      5:30 p.m., New York time, on the first Business Day (as defined in the Buyer
      Note) following the date hereof, the Company shall file a current report on
      Form
      8-K (the “Amendment
      Form 8-K”)
      with
      the Securities and Exchange Commission (the “SEC”), describing
      the terms of this Agreement and including this Agreement as an exhibit thereto,
      in the form required by the Securities Exchange Act of 1934, as amended. From
      and after the filing of this Amendment Form 8-K with the SEC, Buyer shall not
      be
      in possession of any material nonpublic information received from the Company
      or
      any of its affiliates, officers, directors, employees or agents as a result
      of
      this Agreement or any of the matters referred to herein.

     

    6. Avoidance
      of Doubt.
      The
      parties hereto hereby agree, for the avoidance of doubt, that (a) the term
      “Notes”
as
      used
      in the Transaction Documents shall mean the Buyer Note, as, and to the extent,
      amended by this Agreement, and (b) the term “Liabilities”
and
      “Obligations”
as
      used
      in the Transaction Documents shall include all liabilities and obligations
      of
      the Company under this Agreement, under the Buyer Note (as amended hereby)
      and
      under the other Transaction Documents, and each of the parties hereto agrees
      not
      to take any contrary positions. 

     

    7. Reservation
      of Rights.
      Buyer
      has not hereby waived (a) any breach, default or Event of Default that may
      be
      continuing under any of the Transaction Documents or (b) any of Buyer’s rights
      or remedies arising from any such breach, default or Event of Default or
      otherwise available under the Transaction Documents or at law. Buyer expressly
      reserves all such rights and remedies.

     

    8. Successors
      and Assigns.
      This
      Agreement shall be binding upon and shall inure to the benefit of the parties
      hereto and their respective successors and permitted assigns. The successors
      and
      assigns of such entities shall include their respective receivers, trustees
      or
      debtors-in-possession.

     

    
      
        
        

      

      
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    9. Further
      Assurances.
      The
      Company hereby agrees from time to time, as and when requested by Buyer, to
      execute and deliver or cause to be executed and delivered, all such documents,
      instruments and agreements, including secretary’s certificates, stock powers and
      irrevocable transfer agent instructions, and to take or cause to be taken such
      further or other action, as Buyer may reasonably deem necessary or desirable
      in
      order to carry out the intent and purposes of this Agreement, the Buyer Note
      (as
      amended hereby) and the other Transaction Documents.

     

    10. Rules
      of Construction.
      All
      words in the singular or plural include the singular and plural and pronouns
      stated in either the masculine, the feminine or neuter gender shall include
      the
      masculine, feminine and neuter, and the use of the word “including” in this
      Agreement shall be by way of example rather than limitation.

     

    11. Governing
      Law; Jurisdiction; Jury Trial.
      All
      questions concerning the construction, validity, enforcement and interpretation
      of this Agreement 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. Each party hereby irrevocably submits to the exclusive jurisdiction
      of
      the state and federal courts sitting in the City of New York, borough of
      Manhattan, for the adjudication of any dispute hereunder or in connection
      herewith or with any transaction contemplated hereby or discussed herein, and
      hereby irrevocably waives, and agrees not to assert in any suit, action or
      proceeding, any claim that it is not personally subject to the jurisdiction
      of
      any such court, that such suit, action or proceeding is brought in an
      inconvenient forum or that the venue of such suit, action or proceeding is
      improper. Each party hereby irrevocably waives personal service of process
      and
      consents to process being served in any such suit, action or proceeding by
      mailing a copy thereof to such party at the address for such notices to it
      under
      this Agreement and agrees that such service shall constitute good and sufficient
      service of process and notice thereof. Nothing contained herein shall be deemed
      to limit in any way any right to serve process in any manner permitted by law.
      EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT
      TO
      REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
      CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
      CONTEMPLATED HEREBY.

     

    12. Counterparts.
      This
      Agreement may be executed in two or more identical counterparts, all of which
      shall be considered one and the same agreement and shall become effective when
      counterparts have been signed by each party and delivered to each other party.
      In
      the
      event that any signature to this Agreement or any amendment hereto 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 Agreement
      or any amendment hereto 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.

     

    
      
        
        

      

      
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    13. 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.

     

    14. No
      Strict Construction.
      The
      language used in this Agreement will be deemed to be the language chosen by
      the
      parties to express their mutual intent, and no rule of strict construction
      will
      be applied against any party.

     

    15. Merger.
      This
      Agreement, the Buyer Note (as amended hereby) and the other Transaction
      Documents represent the final agreement of each of the parties hereto with
      respect to the matters contained herein and may not be contradicted by evidence
      of prior or contemporaneous agreements, or prior or subsequent oral agreements,
      among any of the parties hereto. Except as expressly set forth in this
      Agreement, in the Buyer Note (as amended hereby) and the other Transaction
      Documents, neither the Company nor Buyer makes any representation, warranty,
      covenant or undertaking with respect to such matters.

     

    16. Interpretative
      Matters.
      Unless
      the context otherwise requires, (i) all references to Sections, Schedules,
      Appendices or Exhibits are to Sections, Schedules, Appendices or Exhibits
      contained in or attached to this Agreement, (b) words in the singular or plural
      include the singular and plural and pronouns stated in either the masculine,
      the
      feminine or neuter gender shall include the masculine, feminine and neuter,
      (c)
      the words “hereof,” “herein” and words of similar effect shall reference this
      Agreement in its entirety, and (d) the use of the word “including” in this
      Agreement shall be by way of example rather than limitation.

     

    17. Reaffirmation.
      Each of
      the Company and the Subsidiaries as issuer, debtor, grantor, pledgor, mortgagor,
      guarantor or assignor, or in other any other similar capacity in which such
      Person grants liens or security interests in its property or otherwise acts
      as
      accommodation party or guarantor, as the case may be, hereby (i) acknowledges
      and agrees that it has reviewed this Agreement, (ii) ratifies and reaffirms
      all
      of its obligations, contingent or otherwise, under each of the Transaction
      Documents, including the Buyer Note (as amended hereby) to which it is a party
      (after giving effect hereto) and (iii) to the extent such Person granted liens
      on or security interests in any of its property pursuant to any such Transaction
      Document as security for or otherwise guaranteed the Liabilities under or with
      respect to the Transaction Documents, ratifies and reaffirms such guarantee
      and
      grant of security interests and liens and confirms and agrees that such security
      interests and liens hereafter secure all of the Liabilities as amended hereby.
      Each of the Company and the Subsidiaries hereby consents to this Agreement
      and
      acknowledges that each of the Transaction Documents, including the Buyer Note
      (as amended hereby), remains in full force and effect and is hereby ratified
      and
      reaffirmed.

     

    [Remainder
      of page intentionally left blank; Signature page follows]

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, this Agreement has been duly executed and delivered by each
      of
      the undersigned as of the date first above written.

     

    
      
        	 	 	 
	 	COMPANY:
	 	 
	 	
                CUSTOMER
                  ACQUISITION NETWORK HOLDINGS, INC.

              
	 	 	 
	 	By:  	/s/
                Michael D.
                Mathews
	 	Name:	Michael
                D. Mathews
	 	Title:	CEO


      

       

      
        	 	 	 
	 	SUBSIDIARIES:
	 	 
	 	
                
                  CUSTOMER
                    ACQUISITION NETWORK, INC.

                

              
	 	 	 
	 	By:  	/s/
                Michael D.
                Mathews
	 	Name:	Michael
                D. Mathews
	 	Title:	CEO


      

       

    

    
      	 	 	 
	 	
              DESKTOP
                ACQUISITION SUB, INC.

            
	 	 
	 	By:  	/s/
              Michael D.
              Mathews
	 	Name:	Michael
              D. Mathews
	 	Title:	CEO


    

     

    
      
        
        

      

      
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	 	BUYER:
	 	 
	 	
              LONGVIEW
                MARQUIS MASTER FUND, L.P.

            
	 	 	 
	 	By:  	Viking
              Asset
              Management, LLC
	 	Its:	Investment
              Advisor
	 	 	 
	 	By:	/s/
              S. Michael Rudolph
	 	Name:	S.
              Michael Rudolph
	 	Title:	Chief
              Financial Officer


    

     

    
      
        
        

      

      
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