Unassociated Document


    EXHIBIT
      10.2

    


    EXECUTION
      VERSION

     

    SECOND
      AMENDMENT TO SECURITIES PURCHASE AGREEMENT

     

    This
      SECOND
      AMENDMENT TO SECURITIES PURCHASE AGREEMENT
      (this
“Amendment”),
      effective as of January 4, 2008 (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 (a) that certain Securities Purchase
      Agreement (as amended, restated, supplemented or otherwise modified and in
      effect from time to time, the “SPA”),
      dated
      as of November 15, 2007, in which the Company has agreed to sell the Notes
      to
      each of the Buyers, and (b) that certain First Amendment to Securities Purchase
      Agreement (the “First
      Amendment”),
      effective as of November 30, 2007, pursuant to which the Company and the Buyers
      agreed to amend certain SPA provisions related to the Company’s deposit
      accounts; and

     

    WHEREAS,
      pursuant to the terms of this Amendment, the Company and the Buyers desire
      to
      further amend the SPA provisions related to the Company’s deposit
      accounts.

     

    NOW,
      THEREFORE,
      in
      consideration of the premises and the mutual covenants contained herein, in
      the
      First Amendment 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(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 Accounts 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 Accounts at any time during
      the period commencing on the Closing Date and ending on the forty-fifth (45th)
      day after the Closing Date, (iii) not more than $100 in the account described
      in
      clause (iii) of the definition of Excluded Accounts (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 and (iv) not more than $40,000 in the account
      described in clause (iv) of the definition of Excluded Accounts at any time
      during the period commencing on January 4, 2008 and ending on January 24, 2008.
      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 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. The Company shall deliver, or cause to be delivered,
      to
      the Collateral Agent on or prior to January 24, 2008 evidence of the closing
      of
      the Excluded Account described in clause (iv) above, in form and substance
      satisfactory to the Collateral Agent, and transfer all funds on deposit in
      such
      Excluded 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.”

     

    
      
         

      

      
         

        
          

        

      

      
         

      

       

    

    (b) Section
      4(w) of the SPA is hereby amended and restated to read in its entirety as
      follows:

     

    “w. The
      Company shall not, and shall cause each of the Subsidiaries to not, direct
      any
      customer, client or remitter of funds to the Company or any of the Subsidiaries
      to remit payments to any Excluded Account after the Closing Date.”

     

    (c) Section
      5(g) of the SPA is hereby amended to add the following subsection at the end
      thereof:

     

    “(vi)
       incur
      the
      obligation to pay the Options Earnout pursuant to the Options Merger
      Agreement.”

     

    (d) 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.,
      (iii)
      account number 004433333900 in the name of Desktop Acquisition Sub, Inc.
      maintained at Bank of America, N.A., and (iv) account number 9081011164 in
      the
      name of Options Newsletter, Inc. maintained at Colonial Bank.”

     

    
      
         

      

      
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    (e) The
      definition of “Options Earnout” is hereby added to the Appendix to the SPA as
      follows:

     

    “‘Options
      Earnout’
means
      the payments, not to exceed $1,000,000 in the aggregate, required to be made
      by
      the Company in accordance with the terms and provisions, and subject to the
      conditions, of Section 2.9 of the Options Merger Agreement.”

     

    (f) The
      definition of “Options
      Merger Agreement”
is
      hereby added to the Appendix to the SPA as follows:

     

    “‘Options
      Merger Agreement’
means
      that certain Agreement and Plan of Merger, dated as of January 4, 2008, among
      the Company, Options Acquisition Sub, Inc., a Delaware corporation, Options
      Newsletter, Inc., a Florida corporation, and Hagai Shechter, as such agreement
      is in effect on January 4, 2008 (without amendment or modification thereafter)
      and attached as Exhibit A to the Second Amendment to Securities Purchase
      Agreement, dated as of January 4, 2008, by and among the Company and the
      Buyers.”

     

    2. Ratification
      and Confirmation of SPA.
      The
      Company hereby adopts, ratifies and confirms the SPA, as amended by the First
      Amendment and by this Amendment, and acknowledges and agrees that the SPA,
      as
      amended by the First Amendment and by this Amendment, 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 the First Amendment
      and
      by this Amendment.

     

    3. Representations
      and Warranties of Company.
      The
      Company hereby represents and warrants to each Buyer that:

     

    (a) Authorization;
      Enforcement; Validity.
      Each of
      the Company and each of its Subsidiaries has the requisite corporate power
      and
      authority to enter into and perform its obligations under this Amendment, the
      SPA (as amended hereby) and each of the other agreements to which it is a party
      or by which it is bound and which is entered into or amended by the parties
      hereto in connection with the transactions contemplated hereby and thereby
      (the
“Other
      Amendment Agreements”).
      The
      execution and delivery of this Amendment and the Other Amendment Agreements,
      and
      the consummation of the transactions contemplated hereby and thereby, have
      been
      duly authorized by the respective boards of directors of the Company and each
      of
      its Subsidiaries, and no further consent or authorization is required by the
      Company, any of its Subsidiaries or any of their respective boards of directors
      or shareholders. Each of this Amendment and the Other Amendment Agreements
      has
      been duly executed and delivered by the Company and each of its Subsidiaries
      that is a party thereto, and each of the Amendment, the SPA (as amended hereby)
      and the Other Amendment Agreements constitutes a valid and binding obligation
      of
      the Company and each of its Subsidiaries, enforceable against the Company and
      each of its Subsidiaries in accordance with its terms.

     

    
      
         

      

      
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    (b) No
      Conflicts.
      The
      execution and delivery of this Amendment, the SPA (as amended hereby) and each
      of the Other Amendment Agreements by the Company and each of its Subsidiaries,
      the performance by the Company and each of its Subsidiaries of their respective
      obligations hereunder and thereunder, and the consummation by the Company and
      each of its Subsidiaries of the transactions contemplated hereby and thereby,
      did not and will not (i) result in a violation of the certificate of
      incorporation, bylaws or other organizational documents of the Company or any
      of
      its Subsidiaries; (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 its 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 its Subsidiaries
      or by
      which any property or asset of the Company or any of its Subsidiaries is bound
      or affected. Neither the Company nor any of its Subsidiaries is required to
      obtain any consent, authorization or order of, or 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 Amendment in accordance with the
      terms hereof.

     

    (c) Options
      Merger Agreement.
      Attached hereto as Exhibit A is a true, correct and complete copy of that
      certain Agreement and Plan of Merger, dated as of January 4, 2008, among the
      Company, Options Acquisition Sub, Inc., a Delaware corporation, Options
      Newsletter, Inc., a Florida corporation, and Hagai Shechter, as entered into
      on
      the date hereof (the “Options
      Merger Agreement”).

     

    4. Representations
      and Warranties of Buyers.
      Each
      Buyer hereby represents and warrants to the Company that (a) such Buyer is
      a
      validly existing limited partnership or corporation, as applicable, and has
      the
      requisite partnership or corporate power and authority to enter into and perform
      its obligations under this Amendment and (b) this Amendment has been duly and
      validly authorized, executed and delivered on behalf of such Buyer and is a
      valid and binding agreement of such Buyer, enforceable against such Buyer in
      accordance with its terms.

     

    5. Acknowledgement
      of the Company.
      The
      Company hereby irrevocably and unconditionally acknowledges, affirms and
      covenants to each Buyer that:

     

    (a) such
      Buyer is not in default under any of the Transaction Documents nor otherwise
      has
      breached any obligations to the Company or any of its Subsidiaries;
      and

     

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

     

    
      
         

      

      
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    6. Disclosure
      of Transactions and Other Material Information.
      On or
      prior to 9:00 a.m., New York time, on the fourth Business Day following the
      date
      hereof, the Company shall file a Form 8-K (the “Form
      8-K”)
      with
      the Securities and Exchange Commission (the “SEC”)
      describing this Amendment, the Options Merger Agreement and the transactions
      contemplated thereby, providing any other information required to be disclosed
      pursuant to the rules and regulations of the SEC, and including as an exhibit
      this Amendment and the Options Merger Agreement, in the form required by the
      1934 Act. From and after the filing of this Form 8-K with the SEC, no Buyer
      shall be in possession of any material nonpublic information received from
      the
      Company, any of its Subsidiaries or any of their respective officers, directors,
      employees, agents or affiliates. The Company shall provide each of the Buyers
      with a reasonable opportunity to review and comment upon the Form 8-K prior
      to
      the filing thereof. 

     

    7. Expenses.
      In
      accordance with Section 4(h) of the SPA, contemporaneously with the execution
      and delivery of this Amendment, the Company shall reimburse each of the
      Collateral Agent and the Buyers for all of its out-of-pocket fees, costs and
      expenses, including attorneys’ fees and expenses, incurred in connection with
      the drafting, negotiation and execution of this Amendment.

     

    8. Further
      Assurances.
      The
      Company hereby agrees from time to time, as and when requested by any Buyer,
      to
      execute and deliver or cause to be executed and delivered, all such documents,
      instruments and agreements, including secretary’s certificates, and to take or
      cause to be taken such further or other action, as such Buyer may reasonably
      deem necessary or desirable in order to carry out the intent and purposes of
      this Amendment, the SPA (as amended hereby) and the Other Amendment
      Agreements.

     

    9. 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
      Amendment shall be by way of example rather than limitation.

     

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

     

    11. 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. 

     

    12. Entire
      Agreement.
      The
      SPA, as amended by the First Amendment and 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.

     

    
      
         

      

      
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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. 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.

     

    15. 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.

     

    [SIGNATURES
      BEGIN ON NEXT PAGE]


     

    
      
         

      

      
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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.
	 
 	 
 	 
 
	 	By:	/S/DEVON
              COHEN
	 	Name:	DEVON
              COHEN
	 	Title:	Chief
              Operating Officer


    

     

    
      
         

      

      
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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
	 	 	 
	 	 	 
	 	By:	/S/
              S. Michael Rudolph
	 	Name:	S.
              Michael Rudolph
	 	Title:	Chief
              Financial Officer and Managing Member


    

     

    
      
         

      

      
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	 	ALPHA CAPITAL
              ANSTALT,
              a
              Liechtenstein corporation
	 
 	 
 	 
 
	 	By:	 
	 	Name:	Konrad
              Ackerman
	 	Title:	Director


    

     

    
      
         

      

      
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