Exhibit
10.10


 


AMENDMENT TO SECURITIES
PURCHASE AGREEMENT AND DEBENTURES

AND AGREEMENT AMONG THE PARTIES


 


This AMENDMENT (the “Amendment”)  to the  Securities
Purchase Agreement  (the “Agreement”), dated as of June 1, 2007, by and among
StarVox Communications, Inc., a California corporation (the “Company”), StarVox Communications, Inc., a Delaware
corporation formerly known as U.S. Wireless Data, Inc., (the “Parent”), and DKR SoundShore Oasis Holding Fund Ltd. (“DKR”), Trinad Capital Master Fund Ltd. (“Trinad”) and SMH Capital Inc. (“SMH,”
and together with DKR and Trinad, the “Holders,” and
each, a “Holder”), and to such Senior Secured
Debentures, and this Agreement by and among the parties hereto, is entered into
as of December 12, 2007.


 


WHEREAS, the Company, the Parent, and the
Holders previously entered into the Agreement, pursuant to which the Company
issued and the Holders purchased Senior Secured Debentures in the aggregate
principal amount of $9,000,000, which were subsequently amended as of August 16,
2007 (as amended, the “Existing Debentures”),
among other things, to extend the maturity date thereof from August 1,
2007 to October 1, 2007;


 


WHEREAS, the Company, the Parent and the Holders
desire to amend the Agreement to allow for the issuance of additional
Debentures to DKR and Trinad in an aggregate principal amount of $5,100,000
(each, an “Additional Debenture,” and
together, the “Additional Debentures”), on the
terms  and subject to the conditions
described herein and substantially in the form attached hereto, increasing the
maximum aggregate principal amount of Debentures issuable under the Agreement,
as amended hereby, to $14,100,000;


 


WHEREAS, in consideration for the agreement of
DKR and Trinad to enter into the Amendment and purchase the Additional
Debentures, SMH has agreed to enter into a Subordination Agreement,
substantially in the form attached hereto as Exhibit A (the “Subordination Agreement”); and


 


WHEREAS, Section 9(c) of the Agreement
provides that the Agreement may be amended by written consent of the Company,
the Parent and holders representing a majority of the aggregate principal
amount of the Existing Debentures, and the undersigned constitute such
requisite holders.


 


NOW
THEREFORE, in
consideration of the premises and mutual promises herein contained, the
Company, the Parent and the Holders hereby agree as follows:


 


1.                                       Defined Terms. Capitalized terms used in this
Amendment which are defined in the Agreement shall have the same meanings as
defined therein.


 


2.                                       Amendments to Securities Purchase
Agreement.


 


a.                                       Section 1 of the Agreement shall be
amended to insert the following subsection (c) at the end of Section 1.


 


“(c)                            Additional Closings. Subject to the satisfaction (or waiver)
of the conditions set forth in Section 10 
(with respect to the Third Closing) and Section


 

















 


11
(with respect to the Fourth Closing), the Company shall issue at the Third
Closing Date and the Fourth Closing Date (each, as defined below) additional
Debentures substantially in the form attached hereto as Exhibit B-2
(each, an “Additional Debenture,” and
together, the “Additional Debentures”), in the
principal amounts and against receipt of the purchase prices set forth below to
each of DKR SoundShore Oasis Holding Fund Ltd. (“DKR”)
and Trinad Capital Master Fund Ltd. (“Trinad”), and
each of DKR and Trinad agree to purchase such Additional Debentures on the
terms set forth herein.  Subject to the
terms and conditions of this Agreement, the third closing (the “Third Closing”) shall occur on December 12, 2007 or such
later date as the Company, the Parent and the Holders may agree (the “Third Closing Date”). 
At the Third Closing, the Company shall issue (i) an Additional
Debenture, duly executed on behalf of the Company and the Parent, in the
principal amount of $2,000,000 and $1,100,000, to DKR and Trinad,
respectively,  and (ii) a Warrant to
purchase 1,000,000 Warrant Shares, duly executed on behalf of the Parent, to
each of DKR and Trinad, against receipt from each of DKR and Trinad of the
purchase price for the Debentures and Warrants of $500,000 by wire transfer in
immediately available funds in accordance with the Company’s instructions.
Subject to the terms and conditions of this Agreement, the fourth closing (the “Fourth Closing”) shall occur at the sole discretion of DKR
and Trinad, and at such time as the Company, the Parent, DKR and Trinad shall
agree, but in no event after January 3, 2008 (the “Fourth
Closing Date”).  At the Fourth
Closing, the Company shall issue an Additional Debenture, duly executed on behalf
of the Company and the Parent, in the principal amount of $1,000,000 to each of
DKR and Trinad against receipt from each of DKR and Trinad of purchase price of
$1,000,000 by wire transfer in immediately available funds in accordance with
the Company’s instructions.  Each
Additional Closing shall occur at such time of day and at such place as the
Company, the Parent, DKR and Trinad may agree, provided that the Fourth Closing
shall occur at the option of DKR and Trinad.”


 


b.                                      The Agreement shall be amended to insert
the following as new Section 10.


 


“10.   CONDITIONS TO THIRD CLOSING


 


The obligations of
DKR and Trinad to consummate the Third Closing are subject to the satisfaction,
at or before the Third Closing Date, of each of the following conditions, provided
that these conditions are for benefit of DKR and Trinad alone and may be waived
by DKR and Trinad at any time in their sole discretion by providing the Company
and Parent with prior written notice thereof:


 


(i)                                     The Company, Parent and SMH Capital Inc.
(“SMH”) shall have executed and delivered to such Buyers a subordination
agreement in the form attached hereto as Exhibit L.


 


(ii)                                  The Company and Parent shall have
executed and delivered to DKR and Trinad the Additional Debentures being
purchased by such Buyers at such Third Closing pursuant to this Agreement.


 


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(iii)                               The representations and warranties of the
Company and Parent shall be true and correct as of the date when made and as of
the Third Closing Date as though made at that time (except for representations
and warranties that speak as of a specific date, which shall be true and
correct as of such specific date), and the Company and Parent shall have
performed, satisfied and complied in all respects with the covenants,
agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by the Company and Parent at or prior to
the Third Closing Date.  Such Buyers shall
have received certificates by the Chief Executive Officers of the Company and
Parent, dated as of the Third Closing Date to the foregoing effect and as to
such other matters as may be reasonably requested by such Buyers.


 


(iv)                              Parent or its Subsidiaries will not be in
violation of any of the rules, regulations or requirements of the Principal
Market applicable to the Parent or its Subsidiaries.


 


(v)                                 The Company and Parent shall have
obtained all governmental, regulatory or third-party consents and approvals, if
any, necessary for the consummation of the Third Closing.


 


(vi)                              The Company and Parent shall have
delivered to such Buyers such other documents relating to the transactions
contemplated by this Agreement as such Buyers or their counsel may reasonably
request.


 


c.                                       The Agreement shall be amended to insert
the following as new Section 11:


 


“11.                           CONDITIONS TO FOURTH CLOSING


 


Notwithstanding
anything to the contrary herein, the Fourth Closing shall take place at the
sole discretion of DKR and Trinad.  In
addition, the obligations of DKR and Trinad to consummate the Fourth Closing
are subject to the satisfaction, at or before the Fourth Closing Date, of each
of the following conditions, provided that these conditions are for benefit of
DKR and Trinad alone and may be waived by DKR and Trinad at any time in their
sole discretion by providing the Company and Parent with prior written notice
thereof:


 


(i)                                     The Company shall have obtained from each
of the holders of the convertible notes set forth on Schedule 3(s) of the
Agreement (the “Subordinated Notes”), such holder’s
agreement to extend the maturity of the Subordinated Notes to November 7,
2008 (except for any Subordinated Note which has been converted to shares of
the Parent’s Common Stock in accordance with its terms) and shall have provided
copies thereof to DKR and Trinad.


 


(ii)                                  The Company and Parent shall have
executed and delivered to DKR and Trinad the Additional Debentures being
purchased by such Buyers at such Fourth Closing pursuant to this Agreement.


 


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(iii)                               Parent shall have delivered to such
Buyers a certificate evidencing the formation and good standing of Parent and
each of its Subsidiaries in such entity’s jurisdiction of formation issued by
the Secretary of State (or comparable office) of such jurisdiction, as of a
date reasonably proximate to the Fourth Closing Date.


 


(iv)                              The Company shall have delivered to such
Buyers a certificate evidencing the Company’s qualification as a foreign
corporation and good standing issued by the Secretary of State (or comparable
office) of each jurisdiction in which the Company conducts business, as of a
date reasonably proximate to the Fourth Closing Date.


 


(v)                                 Parent shall have delivered to such
Buyers a certificate evidencing Parent’s qualification as a foreign corporation
and good standing issued by the Secretary of State (or comparable office) of
each jurisdiction in which the Parent conducts business, as of a date
reasonably proximate to the Fourth Closing Date.


 


(vi)                              The Company shall have delivered to such
Buyers a certified copy of the Company’s Articles of Incorporation as certified
by the Secretary of State of the State of California reasonably proximate to
the Fourth Closing Date.


 


(vii)                           Parent shall have delivered to such
Buyers a certified copy of Parent’s Certificate of Incorporation as certified
by the Secretary of State of the State of Delaware reasonably proximate to the
Fourth Closing Date.


 


(viii)                        The Company shall have delivered to such
Buyers a certificate, executed by the Secretary of the Company and dated as of
the Closing Date, as to (i) resolutions as adopted by the Company’s Board
of Directors in a form reasonably acceptable to such Buyer, (ii) the
Company’s Articles of Incorporation and (iii) the Company’s Bylaws, each
as in effect at the Fourth Closing.


 


(ix)                                Parent shall have delivered to such Buyer
a certificate, executed by the Secretary of Parent and dated as of the Closing
Date, as to (i) resolutions as adopted by Parent’s Board of Directors in a
form reasonably acceptable to such Buyers, (ii) Parent’s Certificate of
Incorporation and (iii) Parent’s Bylaws, each as in effect at the Fourth
Closing.


 


(x)                                   The representations and warranties of the
Company and Parent shall be true and correct as of the date when made and as of
the Fourth Closing Date as though made at that time (except for representations
and warranties that speak as of a specific date, which shall be true and
correct as of such specific date), and the Company and Parent shall have
performed, satisfied and complied in all respects with the covenants,
agreements and conditions required by the Transaction Documents to be
performed, satisfied or complied with by the Company and Parent at or prior to
the Fourth Closing Date.  Such Buyers
shall have received certificates by the Chief Executive Officers of the Company
and Parent, dated as of the Fourth Closing Date to the foregoing effect and as
to such other matters as may be reasonably requested by such Buyers.


 


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(xi)                                Parent or its Subsidiaries will not be in
violation of any of the rules, regulations or requirements of the Principal
Market applicable to the Parent or its Subsidiaries.


 


(xii)                             The Company and Parent shall have
obtained all governmental, regulatory or third-party consents and approvals, if
any, necessary for the consummation of the Fourth Closing.


 


(xiv)                         The Company and Parent shall have
delivered to such Buyers such other documents relating to the transactions
contemplated by this Agreement as such Buyers or their counsel may reasonably
request.


 


d.                                      Exhibit A attached hereto, shall be deemed
inserted after Exhibit L hereto. Exhibit B of the
Agreement shall be renamed as “Exhibit B-1,” and all references to “Exhibit B”
in the Agreement shall be replaced with “Exhibit B-1”.   Exhibt B-2 attached hereto, shall be
deemed inserted after Exhibt B-1 to the Agreement.


 


e.               Except as provided in this Section 2,
the provisions of the Agreement shall be unchanged and remain in full force and
effect.


 


3.                                       Amendment to Debentures. 
Upon and subject to the consummation of the Third Closing, the
definition of “Maturity Date” in the second sentence of Section (1) of
each Existing Debenture shall be amended and restated as follows: “The “Maturity Date” shall be August 1, 2008, or (a) such
earlier date as may be accelerated by the Required Holders upon an Event of
Default in accordance with the terms hereof, (b) such later date as may be
extended at the option of the Required Holders, or (c) such earlier date
which is the third day following a financing or refinancing (or related series
thereof) of either debt or equity by the Company and/or the Parent of at least
Thirty Million Dollars ($30,000,000) in the aggregate.”  Except as provided in this Section 3,
the provisions of the Existing Debentures shall be unchanged and remain in full
force and effect.


 


4.                                       Amendments to Subordinated Notes. 
The Company agrees to use its best efforts to obtain, as promptly as
practicable, from each of the holders of the convertible notes set forth on
Schedule 3(s) of the Agreement (the “Subordinated Notes”),
such holder’s agreement to extend the maturity of the Subordinated Notes to November 7,
2008 (except for any Subordinated Note which has been converted to shares of
the Parent’s Common Stock in accordance with its terms) and to provide copies
thereof to the Holders when available.


 


5.                                       Security Interest. 
The Company, the Parent and Capital Telecommunications, Inc. (“CTI”) hereby confirm that the obligations under this
Amendment, the Existing Debentures, as amended hereby, and the Additional
Debentures shall constitute “Obligations” under the Security Agreement.


 


6.                                       Confirmation of Guaranty. 
CTI and the Parent hereby confirm that the obligations under this
Amendment, the Existing Debentures, as amended hereby, and the Additional
Debentures shall constitute “Guaranteed Obligations” under the Guaranty.


 


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7.                                       Forbearance with Respect to Existing
Defaults.  Each Holder hereby agrees to forbear from
exercising its rights and remedies with respect to any breach, Default or Event
of Default under the Agreement, the Existing Debentures or any other
Transaction Documents, which occurred on or prior to the date hereof, solely
with respect to the Company’s failure to make payments to the Holders when due
pursuant to the terms of the Agreement, Existing Debentures and other
Transaction Documents (the “Forbearance”). 
Notwithstanding the foregoing sentence or any other provision hereof,
the period of Forbearance shall automatically terminate and each of the Holders
shall be immediately entitled to exercise all of its respective rights and
remedies under the Agreement, the Existing Debentures and the Transaction
Documents upon the occurrence of any of the following events after the date
hereof (each a “Forbearance Termination Event”): (i) the commencement of
any legal action by the Parent or the Company or any affiliate of the Parent or
the Company, against a Holder with respect to the Transaction Documents; (ii) the
voluntary or involuntary commencement of any bankruptcy, receivership,
liquidation or assignment for the benefit of creditors proceeding by or against
the Parent or the Company; (iii) the breach or default by the Parent or
the Company of any term, condition, covenant, representation or warranty set
forth herein; or (iv) the occurrence of any breach or default under any of
the Transaction Documents.  The parties
hereto hereby agree that, notwithstanding any provision in the Transaction
Documents, there shall be no cure period for any Forbearance Termination
Event.  Other than the foregoing, nothing
contained herein shall be deemed to evidence a an agreement to forbear with
respect to, or a waiver of, any future breach, Default or Event of Default, or
any right or remedy with respect to any such breach, Default or Event of
Default or to which any Holder may be entitled under applicable law.


 


8.                                       Chief
Restructuring Officer.  The
Company, Parent and the Holders hereby agree that DKR and Trinad shall be
entitled to appoint a Chief Restructuring Officer of the Company, which
appointment shall be subject to confirmation by the Company’s Board of
Directors.  Such Chief Restructuring
Officer shall have full access to the Company’s facilities, personnel, books
and records and shall supervise the liquidation of the Company’s assets.  The Company and the Parent shall pay all fees
incurred in connection with the appointment of such Chief Restructuring
Officer.


 


9.                                       Delivery of
Weekly Cash Expenditure Projections.  The Company and the Parent hereby agree to
deliver to DKR and Trinad weekly projections of anticipated cash expenditures
(it being understood that actual cash expenditures may be different if
necessary, in the reasonable discretion of the appropriate officers of the
Company and the Parent, to maintain operations.)


 


10.                                 No Right of First Refusal; Waiver of
Notice.  SMH hereby waives all rights arising from the
sale of the Additional Debentures pursuant to Section 4(l) of the
Agreement, and waives any notices of a Subsequent Placement required pursuant
thereto in connection with such sale.


 


11.                                 Governing Law. 
This Amendment shall be construed and enforced in accordance with, and
all questions concerning the construction, validity, interpretation and
performance of this Amendment and all disputes arising hereunder shall be
governed by, the 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.


 


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12.                                 Counterparts. 
This Amendment 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; provided that a facsimile signature shall be considered due
execution and shall be binding upon the signatory thereto with the same force
and effect as if the signature were an original, not a facsimile signature.


 


13.                                 Headings.  The headings
of this Amendment are for convenience of reference and shall not form part of,
or affect the interpretation of, this Amendment.


 


14.                                 Severability. 
If any provision of this Amendment shall be invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Amendment in that
jurisdiction or the validity or enforceability of any provision of this
Amendment in any other jurisdiction.


 


15.                                 Further Assurances. 
Each party shall do and perform, or cause to be done and performed, all
such further acts and things, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as any other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Amendment and the consummation of the transactions contemplated hereby.


 


16.                                 Fees.   The Company shall pay all fees of the Holders
incurred in connection with this Amendment and the transactions and actions
taken pursuant hereto, regardless of whether the Third Closing or the Fourth
Closing occurs, including, without limitation, all legal fees, which shall be
disbursed from the purchase price of the Additional Debentures.


 


[Signature
Pages Follow]


 


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IN
WITNESS WHEREOF,
each Holder, the Company and Parent have caused their respective signature page to
this Amendment to be duly executed as of the date first written above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  STARVOX COMMUNICATIONS, INC., a 

  California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
      /s/ T.E. Rowley

  
	
   

  	
   

  	
  Name:
  Thomas E. Rowley

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARENT:

  
	
   

  	
   

  
	
   

  	
  STARVOX COMMUNICATIONS, INC., a 

  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
      /s/ T.E. Rowley

  
	
   

  	
   

  	
  Name:
  Thomas E. Rowley

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
  (only
  with respect to Sections 5 and 6 of this

  Amendment)

  
	
   

  	
   

  
	
   

  	
  CAPITAL
  TELECOMMUNICATIONS, INC., a 

  Pennsylvania corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ T.E. Rowley

  
	
   

  	
   

  	
  Name:
  Thomas E. Rowley

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  



 


 


[Amendment
to Securities Purchase Agreement and Debentures and Agreement and Agreement]


 

















 


IN
WITNESS WHEREOF, each
Holder, the Company and Parent have caused their respective signature page to
this Amendment to be duly executed as of the date first written above.


 


	
   

  	
  HOLDERS:

  
	
   

  	
   

  
	
   

  	
  DKR SOUNDSHORE OASIS HOLDING FUND

  LTD.

  
	
   

  	
   

  
	
   

  	
  By: DKR Oasis Management Company LP, its

  investment manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Barbara Burger

  
	
   

  	
   

  	
  Name:Barbara
  Burger

  
	
   

  	
   

  	
  Title:
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TRINAD CAPITAL MASTER FUND LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Jay Wolf

  
	
   

  	
   

  	
  Name:Jay
  Wolf

  
	
   

  	
   

  	
  Title:Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SMH CAPITAL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ B.T. Morris

  
	
   

  	
   

  	
  Name:Ben
  T. Morris

  
	
   

  	
   

  	
  Title:Chief
  Executive Officer

  
				



 


 


[Amendment
to Securities Purchase Agreement and Debentures and Agreement and Agreement]


 





















 


EXHIBIT A


 


Form of Subordination Agreement


 





















 


EXHIBIT B-2


 


Form of Additional Debenture