Unassociated Document


    EXHIBIT
      10.9

     

    FUNDS
      ESCROW AGREEMENT

     

    This
      Agreement (this “Agreement”)
      is
      dated as of the 31st day of December, 2005 among Cancable Inc., an Ontario
      corporation (the “Company”),
      Laurus Master Fund, Ltd. (the “Purchaser”),
      and
      Loeb & Loeb LLP (the “Escrow
      Agent”):

     

    W I T N E S S E T H:

     

    WHEREAS,
      the Purchaser has advised the Escrow Agent that (a) the Company and the
      Purchaser have entered into a Securities Purchase Agreement (the “Securities
      Purchase Agreement”) for the sale by the Company to the Purchaser of a secured
      term note (the “Term Note”), and (b) a subsidiary of the Company has issued to
      the Purchaser an option in connection with the issuance of the Term
      Note;

     

    WHEREAS,
      the Company and the Purchaser wish to deliver to the Escrow Agent copies of
      the
      Documents (as hereafter defined) and, following the satisfaction of all closing
      conditions relating to the Documents, the Purchaser to deliver the Escrowed
      Payment (as hereafter defined), in each case, to be held and released by Escrow
      Agent in accordance with the terms and conditions of this Agreement;
      and

     

    WHEREAS,
      the Escrow Agent is willing to serve as escrow agent pursuant to the terms
      and
      conditions of this Agreement;

     

    NOW
      THEREFORE, the parties agree as follows:

     

    ARTICLE
      I

     

    INTERPRETATION

     

    1.1.  Definitions.
      Whenever used in this Agreement, the following terms shall have the meanings
      set
      forth below.

     

    (a)  “Agreement”
      means this Agreement, as amended, modified and/or supplemented from time to
      time
      by written agreement among the parties hereto.

     

    (b)  “Closing
      Payment” means the closing payment to be paid to Laurus Capital Management, LLC,
      the fund manager, as set forth on Schedule A hereto. 

     

    (c)  “Disbursement
      Letter” means that certain letter delivered to the Escrow Agent by the Company,
      acceptable in form and substance to the Purchaser, setting forth wire
      instructions and amounts to be funded at the Closing. 

     

    (d)  “Documents”
      means copies of the Disbursement Letter, the Securities Purchase Agreement,
      the
      Term Note and the Option.

     

    (e)  “Escrowed
      Payment” means $6,865,000.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    1.2.  Entire
      Agreement.
      This
      Agreement constitutes the entire agreement among the parties hereto with respect
      to the arrangement with the Escrow Agent and supersedes all prior agreements,
      understandings, negotiations and discussions of the parties, whether oral or
      written with respect to the arrangement with the Escrow Agent. There are no
      warranties, representations and other agreements made by the parties in
      connection with the arrangement with the Escrow Agent except as specifically
      set
      forth in this Agreement.

     

    1.3.  Extended
      Meanings.
      In this
      Agreement words importing the singular number include the plural and vice versa;
      words importing the masculine gender include the feminine and neuter genders.
      The word “person” includes an individual, body corporate, partnership, trustee
      or trust or unincorporated association, executor, administrator or legal
      representative.

     

    1.4.  Waivers
      and Amendments.
      This
      Agreement may be amended, modified, superseded, cancelled, renewed or extended,
      and the terms and conditions hereof may be waived, in each case only by a
      written instrument signed by all parties hereto, or, in the case of a waiver,
      by
      the party waiving compliance. Except as expressly stated herein, no delay on
      the
      part of any party in exercising any right, power or privilege hereunder shall
      operate as a waiver thereof, nor shall any waiver on the part of any party
      of
      any right, power or privilege hereunder preclude any other or future exercise
      of
      any other right, power or privilege hereunder.

     

    1.5.  Headings.
      The
      division of this Agreement into articles, sections, subsections and paragraphs
      and the insertion of headings are for convenience of reference only and shall
      not affect the construction or interpretation of this Agreement.

     

    1.6.  Law
      Governing this Agreement; Consent to Jurisdiction.
      THIS
      AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
      THE
      STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. With
      respect to any suit, action or proceeding relating to this Agreement or to
      the
      transactions contemplated hereby (“Proceedings”), each party hereto irrevocably
      submits to the exclusive jurisdiction of the courts of the County of New York,
      State of New York and the United States District court located in the county
      of
      New York in the State of New York. Each party hereto hereby irrevocably and
      unconditionally (a) waives trial by jury in any Proceeding relating to this
      Agreement and for any related counterclaim and (b) waives any objection which
      it
      may have at any time to the laying of venue of any Proceeding brought in any
      such court, waives any claim that such Proceedings have been brought in an
      inconvenient forum and further waives the right to object, with respect to
      such
      Proceedings, that such court does not have jurisdiction over such party. As
      between the Company and the Purchaser, the prevailing party shall be entitled
      to
      recover from the other party its reasonable attorneys’ fees and costs. In the
      event that any provision of this Agreement is determined by a court of competent
      jurisdiction to be invalid or unenforceable, then the remainder of this
      Agreement shall not be affected and shall remain in full force and
      effect.

     

    1.7.  Construction.
      Each
      party acknowledges that its legal counsel participated in the preparation of
      this Agreement and, therefore, stipulates that the rule of construction that
      ambiguities are to be resolved against the drafting party shall not be applied
      in the interpretation of this Agreement to favor any party against the
      other.

     

    
      
        
        

      

      
        -2-

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      II

     

    APPOINTMENT
      OF AND DELIVERIES TO THE ESCROW AGENT

     

    2.1.  Appointment.
      The
      Company and the Purchaser hereby irrevocably designate and appoint the Escrow
      Agent as their escrow agent for the purposes set forth herein, and the Escrow
      Agent by its execution and delivery of this Agreement hereby accepts such
      appointment under the terms and conditions set forth herein.

     

    2.2.  Copies
      of Documents to Escrow Agent.
      On or
      about the date hereof, the Purchaser and the Company shall deliver to the Escrow
      Agent copies of the Documents executed by such parties.

     

    2.3.  Delivery
      of Escrowed Payment to Escrow Agent.
      Following the satisfaction of all closing conditions relating to the Documents
      (other than the funding of the Escrowed Payment), the Purchaser shall deliver
      to
      the Escrow Agent the Escrowed Payment. At such time, the Escrow Agent shall
      hold
      the Escrowed Payment as agent for the Company, subject to the terms and
      conditions of this Agreement.

     

    2.4.  
      Intention to Create Escrow Over the Escrowed Payment.
      The
      Purchaser and the Company intend that the Escrowed Payment shall be held in
      escrow by the Escrow Agent and released from escrow by the Escrow Agent only
      in
      accordance with the terms and conditions of this Agreement.

     

    ARTICLE
      III

     

    RELEASE
      OF ESCROW

     

    3.1.  Release
      of Escrow.
      Subject
      to the provisions of Section 4.2, the Escrow Agent shall release the Escrowed
      Payment from escrow as follows:

     

    (a)  Upon
      receipt by the Escrow Agent of (i) oral instructions from David Grin and/or
      Eugene Grin (each of whom is a director of the Purchaser) consenting to the
      release of the Escrowed Payment from escrow in accordance with the Disbursement
      Letter following the Escrow Agent’s receipt of the Escrowed Payment, (ii) the
      Disbursement Letter, and (iii) the Escrowed Payment, the Escrowed Payment shall
      promptly be disbursed in accordance with the Disbursement Letter. The
      Disbursement Letter shall include, without limitation, Escrow Agent’s
      authorization to retain from the Escrowed Payment Escrow Agent’s fee for acting
      as Escrow Agent hereunder and the Closing Payment for delivery to Laurus Capital
      Management, LLC in accordance with the Disbursement Letter.

     

    (b)  Upon
      receipt by the Escrow Agent of a final and non-appealable judgment, order,
      decree or award of a court of competent jurisdiction (a “Court
      Order”)
      relating to the Escrowed Payment, the Escrow Agent shall remit the Escrowed
      Payment in accordance with the Court Order. Any Court Order shall be accompanied
      by an opinion of counsel for the party presenting the Court Order to the Escrow
      Agent (which opinion shall be satisfactory to the Escrow Agent) to the effect
      that the court issuing the Court Order is a court of competent jurisdiction
      and
      that the Court Order is final and non-appealable.

     

    
      
        
        

      

      
        -3-

        
          

        

      

      
        
        

      

    

     

    3.2.  Acknowledgement
      of Company and Purchaser; Disputes.
      The
      Company and the Purchaser acknowledge that the only terms and conditions upon
      which the Escrowed Payment are to be released from escrow are as set forth
      in
      Sections 3 and 4 of this Agreement. The Company and the Purchaser reaffirm
      their
      agreement to abide by the terms and conditions of this Agreement with respect
      to
      the release of the Escrowed Payment. Any dispute with respect to the release
      of
      the Escrowed Payment shall be resolved pursuant to Section 4.2 or by written
      agreement between the Company and Purchaser.

     

    ARTICLE
      IV

     

    CONCERNING
      THE ESCROW AGENT

     

    4.1.  Duties
      and Responsibilities of the Escrow Agent.
      The
      Escrow Agent’s duties and responsibilities shall be subject to the following
      terms and conditions:

     

    (a)  The
      Purchaser and the Company acknowledge and agree that the Escrow Agent (i) shall
      not be required to inquire into whether the Purchaser, the Company or any other
      party is entitled to receipt of any Document or all or any portion of the
      Escrowed Payment; (ii) shall not be called upon to construe or review any
      Document or any other document, instrument or agreement entered into in
      connection therewith; (iii) shall be obligated only for the performance of
      such
      duties as are specifically assumed by the Escrow Agent pursuant to this
      Agreement; (iv) may rely on and shall be protected in acting or refraining
      from
      acting upon any written notice, instruction, instrument, statement, request
      or
      document furnished to it hereunder and believed by the Escrow Agent in good
      faith to be genuine and to have been signed or presented by the proper person
      or
      party, without being required to determine the authenticity or correctness
      of
      any fact stated therein or the propriety or validity or the service thereof;
      (v)
      may assume that any person purporting to give notice or make any statement
      or
      execute any document in connection with the provisions hereof has been duly
      authorized to do so; (vi) shall not be responsible for the identity, authority
      or rights of any person, firm or company executing or delivering or purporting
      to execute or deliver this Agreement or any Document or any funds deposited
      hereunder or any endorsement thereon or assignment thereof; (vii) shall not
      be
      under any duty to give the property held by Escrow Agent hereunder any greater
      degree of care than Escrow Agent gives its own similar property; and (viii)
      may
      consult counsel satisfactory to Escrow Agent (including, without limitation,
      Loeb & Loeb, LLP or such other counsel of Escrow Agent’s choosing), the
      opinion of such counsel to be full and complete authorization and protection
      in
      respect of any action taken, suffered or omitted by Escrow Agent hereunder
      in
      good faith and in accordance with the opinion of such counsel.

     

    (b)  The
      Purchaser and the Company acknowledge that the Escrow Agent is acting solely
      as
      a stakeholder at their request and that the Escrow Agent shall not be liable
      for
      any action taken by Escrow Agent in good faith and believed by Escrow Agent
      to
      be authorized or within the rights or powers conferred upon Escrow Agent by
      this
      Agreement. The Purchaser and the Company hereby, jointly and severally,
      indemnify and hold harmless the Escrow Agent and any of Escrow Agent’s partners,
      employees, agents and representatives from and against any and all actions
      taken
      or omitted to be taken by Escrow Agent or any of them hereunder and any and
      all
      claims, losses, liabilities, costs, damages and expenses suffered and/or
      incurred by the Escrow Agent arising in any manner whatsoever out of the
      transactions contemplated by this Agreement and/or any transaction related
      in
      any way hereto, including the fees of outside counsel and other costs and
      expenses of defending itself against any claims, losses, liabilities, costs,
      damages and expenses arising in any manner whatsoever out the transactions
      contemplated by this Agreement and/or any transaction related in any way hereto,
      except for such claims, losses, liabilities, costs, damages and expenses
      incurred by reason of the Escrow Agent’s gross negligence or willful misconduct.
      The Escrow Agent shall owe a duty only to the Purchaser and the Company under
      this Agreement and to no other person.

     

    
      
        
        

      

      
        -4-

        
          

        

      

      
        
        

      

    

     

    (c)  The
      Purchaser and the Company shall jointly and severally reimburse the Escrow
      Agent
      for its reasonable out-of-pocket expenses (including counsel fees (which counsel
      may be Loeb & Loeb LLP or such other counsel of the Escrow Agent’s choosing)
      incurred in connection with the performance of its duties and responsibilities
      hereunder, which shall not (subject to Section 4.1(b)) exceed $1,500.


     

    (d)  The
      Escrow Agent may at any time resign as Escrow Agent hereunder by giving five
      (5)
      business days prior written notice of resignation to the Purchaser and the
      Company. Prior to the effective date of resignation as specified in such notice,
      the Purchaser and Company will issue to the Escrow Agent a joint instruction
      authorizing delivery of the Documents and the Escrowed Payment to a substitute
      Escrow Agent selected by the Purchaser and the Company. If no successor Escrow
      Agent is named by the Purchaser and the Company, the Escrow Agent may apply
      to a
      court of competent jurisdiction in the State of New York for appointment of
      a
      successor Escrow Agent, and deposit the Documents and the Escrowed Payment
      with
      the clerk of any such court, and/or otherwise commence an interpleader or
      similar action for a determination of where to deposit the same.

     

    (e)  The
      Escrow Agent does not have and will not have any interest in the Documents
      and
      the Escrowed Payment, but is serving only as escrow agent, having only
      possession thereof. 

     

    (f)  The
      Escrow Agent shall not be liable for any action taken or omitted by it in good
      faith and reasonably believed by it to be authorized hereby or within the rights
      or powers conferred upon it hereunder, nor for action taken or omitted by it
      in
      good faith, and in accordance with advice of counsel (which counsel may be
      Loeb
& Loeb, LLP or such other counsel of the Escrow Agent’s choosing), and shall
      not be liable for any mistake of fact or error of judgment or for any acts
      or
      omissions of any kind except to the extent any such liability arose from its
      own
      willful misconduct or gross negligence.

     

    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    

     

    (g)  This
      Agreement sets forth exclusively the duties of the Escrow Agent with respect
      to
      any and all matters pertinent thereto and no implied duties or obligations
      shall
      be read into this Agreement.

     

    (h)  The
      Escrow Agent shall be permitted to act as counsel for the Purchaser or the
      Company, as the case may be, in any dispute as to the disposition of the
      Documents and the Escrowed Payment, in any other dispute between the Purchaser
      and the Company, whether or not the Escrow Agent is then holding the Documents
      and/or the Escrowed Payment and continues to act as the Escrow Agent hereunder.
      

     

    (i)  The
      provisions of this Section 4.1 shall survive the resignation of the Escrow
      Agent
      or the termination of this Agreement.

     

    4.2.  Dispute
      Resolution; Judgments.
      Resolution of disputes arising under this Agreement shall be subject to the
      following terms and conditions:

     

    (a)  If
      any
      dispute shall arise with respect to the delivery, ownership, right of possession
      or disposition of the Documents and/or the Escrowed Payment, or if the Escrow
      Agent shall in good faith be uncertain as to its duties or rights hereunder,
      the
      Escrow Agent shall be authorized, without liability to anyone, to (i) refrain
      from taking any action other than to continue to hold the Documents and the
      Escrowed Payment pending receipt of a joint instruction from the Purchaser
      and
      the Company, (ii) commence an interpleader or similar action, suit or proceeding
      for the resolution of any such dispute; and/or (iii) deposit the Documents
      and
      the Escrowed Payment with any court of competent jurisdiction in the State
      of
      New York, in which event the Escrow Agent shall give written notice thereof
      to
      the Purchaser and the Company and shall thereupon be relieved and discharged
      from all further obligations pursuant to this Agreement. The Escrow Agent may,
      but shall be under no duty to, institute or defend any legal proceedings which
      relate to the Documents and the Escrowed Payment. The Escrow Agent shall have
      the right to retain counsel if it becomes involved in any disagreement, dispute
      or litigation on account of this Agreement or otherwise determines that it
      is
      necessary to consult counsel which such counsel may be Loeb & Loeb
LLP
      or
such
      other counsel of the Escrow Agent’s choosing.

     

    (b)  The
      Escrow Agent is hereby expressly authorized to comply with and obey any Court
      Order. In case the Escrow Agent obeys or complies with a Court Order, the Escrow
      Agent shall not be liable to the Purchaser and the Company or to any other
      person, firm, company or entity by reason of such compliance.

     

    ARTICLE
      V

     

    GENERAL
      MATTERS

     

    5.1.  Termination.
      This
      escrow shall terminate upon disbursement of the Escrowed Payment in accordance
      with the terms of this Agreement or earlier upon the agreement in writing of
      the
      Purchaser and the Company or resignation of the Escrow Agent in accordance
      with
      the terms hereof.

     

    
      
        
        

      

      
        -6-

        
          

        

      

      
        
        

      

    

     

    5.2.  Notices.
      All
      notices, requests, demands and other communications required or permitted
      hereunder shall be in writing and shall be deemed to have been duly given one
      (1) day after being sent by telecopy (with copy delivered by overnight courier,
      regular or certified mail):

     

    If
      to the
      Company, to:

     

    2100
      Forbes Street,

    Units-8-10

    Whitby,
      Ontario, L1N 9T3

    Canada

    Telephone: 905.666.8676

    Facsimile: 905.666.9795

    Attention: Chief
      Financial Officer

     

    With
      a
      copy to: with
      a
      copy to (which shall not constitute notice):

     

    Andrew
      J.
      Beck, Esq.

    Torys
      LLP

    237
      Park
      Avenue

    20th
      Floor

    New
      York,
      NY 10017

    Facsimile: (212)
      682-0200

     

    
      	(a)	
              If
                to the Purchaser, to:

            


    

     

    Laurus
      Master Fund, Ltd.

    M&C
      Corporate Services Limited, 

    P.O.
      Box
      309 GT, Ugland House

    South
      Church Street, George Town

    Grand
      Cayman, Cayman Islands

    Fax: 345-949-8080

    Attention: John
      Tucker, Esq.

     

    
      	(b)	
              If
                to the Escrow Agent, to:

            


    

     

    Loeb
      & Loeb LLP

    345
      Park
      Avenue

    New
      York,
      New York 10154

    Fax: (212)
      407-4990

    Attention: Scott
      J.
      Giordano, Esq.

     

    or
      to
      such other address as any of them shall give to the others by notice made
      pursuant to this Section 5.2.

     

    5.3.  Interest.
      The
      Escrowed Payment shall not be held in an interest bearing account nor will
      interest be payable in connection therewith.

     

    5.4.  Assignment;
      Binding Agreement.
      Neither
      this Agreement nor any right or obligation hereunder shall be assignable by
      any
      party without the prior written consent of the other parties hereto. This
      Agreement shall inure to the benefit of and be binding upon the parties hereto
      and their respective legal representatives, successors and assigns.

     

    5.5.  Invalidity.
      In the
      event that any one or more of the provisions contained herein, or the
      application thereof in any circumstance, is held invalid, illegal, or
      unenforceable in any respect for any reason, the validity, legality and
      enforceability of any such provision in every other respect and of the remaining
      provisions contained herein shall not be in any way impaired thereby, it being
      intended that all of the rights and privileges of the parties hereto shall
      be
      enforceable to the fullest extent permitted by law.

     

    5.6.  Counterparts/Execution.
      This
      Agreement may be executed in any number of counterparts and by different
      signatories hereto on separate counterparts, each of which, when so executed,
      shall be deemed an original, but all such counterparts shall constitute but
      one
      and the same agreement. This Agreement may be executed by facsimile
      transmission.

     

    
      
        
        

      

      
        -7-

        
          

        

      

      
        
        

      

    



    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      date
      and year first above written.

     

    COMPANY:

     

    CANACABLE
      INC.

     

    By: 
      /s/
      Ross
      Jepson

    
      
        

      

    

    Name:
      Ross Jepson

    Title:
      President

     

    PURCHASER:

     

    LAURUS
      MASTER FUND, LTD.

     

    By: 
      /s/
      David
      Grin

    
      
        

      

    

    Name:
      David Grin

    Title:
      Director

     

    ESCROW
      AGENT:

     

    LOEB
      & LOEB LLP

     

    By: 
      /s/
      Scott J. Giordano

    
      
        

      

    

    Name:
      Scott J. Giordano

    Title:
      Partner

    


    
      
        
        

      

      
        -8-

        
          

        

      

      
        
        

      

    

     

    SCHEDULE
      A TO FUNDS ESCROW AGREEMENT

     

    
      	
              PURCHASER

            	
              PRINCIPAL
                NOTE AMOUNT

            
	
              LAURUS
                MASTER FUND, LTD.,

              M&C
                Corporate Services Limited,

              P.O.
                Box 309 GT,

              Ugland
                House, South Church Street,

              George
                Town, Grand Cayman, Cayman Islands

              Fax: 345-949-8080

            	
              Term
                Note in an aggregate principal amount of $6,865,000

            
	
              TOTAL

            	
              $6,865,000

            


    

    


     

    
      	
              FUND
                MANAGER

            	
              CLOSING
                PAYMENT

            
	
              LAURUS
                CAPITAL MANAGEMENT, L.L.C.

              825
                Third Avenue, 14th
                Floor

              New
                York, New York 10022

              Fax:
                212-541-4434

            	
              Closing
                payment payable in connection with investment by Laurus Master Fund,
                Ltd.
                for which Laurus Capital Management, L.L.C. is the Manager.

               

            
	
              TOTAL

            	
              $240,275

            


    

     

     

    
      	
              OPTION
                RECIPIENT

            	
              OPTION
                IN CONNECTION WITH OFFERING

            
	
              LAURUS
                MASTER FUND, LTD.

              M&C
                Corporate Services Limited,

              P.O.
                Box 309 GT,

              Ugland
                House, South Church Street,

              George
                Town, Grand Cayman, Cayman Islands 

              Fax: 345-949-8080

            	
              Option
                exercisable into shares of common stock of Cancable Holding Corp.
                issuable
                in connection with the Term Note.